Hidden away in Schedule 2 to the Children & Families Act 2014 are some amendments to s12 of the Children Act 1989 which not everyone has yet noticed.
I don’t mean that child arrangements orders have replaced residence and contact orders (If this IS news to you please go directly to High Holborn / Chancery Lane and hand in your practising certificate TODAY). No. It’s a little nugget with potentially significant ramifications, albeit probably in only a few cases.
Because as of 22 April 2014 a person who has the benefit of a “spending time or otherwise having contact with” CAO can potentially obtain PR.
New S12(2A) Children Act 1989 now gives the court a discretion to grant PR for the life of the CAO.
But when is this power likely to be exercised? What mischief is it aimed at?
This provision was in the original Bill as laid before Parliament, rather than a late amendment, and the explanatory notes to the original Bill say only this:
110.New subsection 12(2A) enables the court to give parental responsibility to a person who is not a child’s parent or guardian, in cases where a child arrangements order provides for the child concerned to spend time with or otherwise have contact (but not live) with that person. As for subsection 12(2), parental responsibility is limited to the duration of the relevant provision.
111.As a result of new subsection 12(2A) and new subsection 10(5)(d) the entitlement to apply for a child arrangements order will be extended. New paragraph (d) of section 10(5) of the Children Act 1989 (see paragraph 5(3)(c) of Schedule 2) would provide that a person who has parental responsibility by virtue of provision under new section 12(2A) is entitled to apply for a child arrangements order. The Government considers that the extension of entitlement that would be effected by new section 10(5)(d) is narrow because there are likely to be only a few cases in which the court considers it appropriate to give parental responsibility to a person with whom a child spends time or otherwise has contact but does not live.
Not massively illuminating I think you’ll agree. But it does flag one aspect of the significance of this – those with the benefit of such PR represent a new class of people who are entitled as of right to apply for a s8 order.
And if you note the wording – this does not just grant PR for those who are having face to face contact (sorry “spending time with”). It also gives a power to grant pr to those who are “otherwise having contact”.
Thinking back to the period before the Bill was launched there was much fuss, post-Norgrove report, about removing the requirement for grandparents to seek leave before applying for contact. Norgrove flip-flopped. The Bill was silent. Except I now wonder if this was a little squeak in their direction. Of course a grandparent would still need leave to get to the point where they no longer needed leave (if you get me), but it would prevent the need for repeated leave applications. Not of course that we are supposed to be in an era of repeated s8 applications, but this may well be one side effect of the fix ‘em up and discharge ‘em A&E approach to private law that we are now enjoined to adopt.
So, I confess I’m not entirely sure what the drafters were getting at, and there appears to have been no debate about this provision in Parliament (based on my trawl of Hansard), which reminds me that frankly, Parliament had bigger fish to fry.
Leaving aside Parliament’s intentions, it could apply to a number of scenarios – to grannies struggling to have contact with their grandchildren in the care of their former son or daughter in law, to parents who for one reason or another fall through the cracks between the assisted conception and other legislation and are not treated legally as parents…for respite carers I suppose (e.g. Aunties who have the children stay with them in Scotland for the six week summer hols or family members who step in cyclically when a sole primary carer’s mental or physical health declines).
What is most interesting is how the court will apply or draw upon previous case law, which hitherto relates mainly to fathers. In some cases there will be an easy analogy to be drawn, but in most cases falling within this system the waters are untested as far as any test for the exercise of this discretion is concerned. Will it be commitment, motivation and bond? If that is enough for a non-parent frankly any old joe blogs could secure PR.
I am very interested to see how this pans out – it may just lie dormant for a while before any case arises or it may wither and not be used at all. But it could produce some interesting case law, and some challenges for judges dealing with not one but possibly three litigants in person and a bit of novel law.