Private Law Thoughts

I’ve been reviewing the Children & Families Bill in light of the Child Arrangements Programme proposed by the working group on private law proceedings and the more I resolve one question the more another pops up.

I went to check whether or not enforcement orders and contact activity directions would be applicable to all flavours of CAO – to see if the current anomaly where there are more enforcement tools available in the case of a contact order than a shared residence order is replicated. Answer : no, that anomaly will be ironed out. You can enforce a CAO, any CAO in all the ways presently available to you if you were the holder of a contact order.

But what I now don’t understand is what will happen to residence and contact orders that are in force as at the date of the Act coming into force. The Act is silent on it, and as far as I can tell all references to such orders are eradicated from the Act. Where does this leave the status of pre-existing contact orders? They cannot be enforced using s11J, because new s11J will not apply to contact orders. What will happen if an application to vary a contact or residence order is made – will the provision of such an order automatically be transposed into a child arrangements order with the same structure (that this would be a pretty mechanical task rather exposes the myth that a CAO will be ANY different to a RO/CO but that is another post entirely) or will the conversion need to be justified? More straightforward would be that an existing RO or CO should be “treated as” a CAO with the provision that a child should live with or spend time with etc. But it’s not in the Bill.

This is all odd. Whilst it has been suggested to me that this will be dealt with in a SI I don’t think this can be right – primary legislation is scheduled to repeal ROs and COs out of existence, they cannot be reintroduced by secondary legislation. I’m genuinely confused by this. I’ve not gone through the Bill with a very fine toothcomb, so I may have missed something, or my recollection of retrospectivity / statutory interpretation etc may be awry…If somebody sharper than I knows the answer please put me out of my misery and post a comment….I MUST have it wrong somewhere as this is too daft a thing for the draftsmen to have left out…

On a more positive note *hollow laughter* … Private law stats for Oct 2013 are down 8% on the same month last year. Don’t panic! The tsunami of litigants in person is cancelled. Yes that’s right folks, they’ve given up and gone home before they even began. Problem solved eh?

More on the “CAP” later. Worn out by my own sidetrack….

Answers on a postcard please…


8 thoughts on “Private Law Thoughts

  1. How was the comparable issue handled during the transition period in 1991 and 1992 when the Children Act was rolled out? Was there a straightforward substitution of the relevant terms; contact for access and residency for custody?

  2. At a guess, the answer is that the sections repealing the existing provisions will be commenced except in so far as existing ROs and COs are concerned. (Note the usual power under s111(5) to specify different commencement days for different purposes.)

    • i don’t think its as straightforward as not commencing a specific section because the whole act is riddled with refs to RO / CO which are just switched on the commencement date for CAO. Perhaps the SI will say “section x comes into force for the purposes of…” – would that even work? there will potentially be an 18 year run off of these orders, it would be easier to have a provision which says this is what happens to an order made under s8 prior to x date (x being the commencement of the new provisions).

      am sure there is a simple answer that in my obtuse mood I am missing…

  3. The simple answer would be for the transitional clause (s109 I think) to say that retrospectively, all orders made under the previous section 8 of the Children Act 1989 will be treated in law as though they were Child Arrangment Orders, and all references to Child Arrangement Orders will be deemed to apply to such orders that were made prior to 1st April 2014 (or whenever).

    I suspect, though I can’t be sure, that the draftsmen have another run through the boilerplate stuff once Committe stages have sorted out all of the matters of principle. (So the transitional clause as drafted would hopefully be tightened up when they see the remainder of the Bill in its entireity)

    But highlighting that this is something that needs to be picked up before the drafting is completed, is well worth doing; because things do slip past even the most careful drafters of documents.

    (see for example para 46 of Neath Port Talbot, as Stuart Fuller has pointed out on Twitter, which suggests that a Residence Order and Care Order can exist on the same child at the same time)

    • Ah, well then the answer is that I should not treat the draft as final. Which is a fair point.

      I’ve just read pa 46 of Neath (link here for ease of reference), but don’t see how that squares with s 91(1) and (2) of the CA? Confess I have not had time to read pa 46 in context for this purpose so perhaps I am missing something but on the face of it pa 46 is wrong. ??

  4. If only they had ennobled you as Baroness Lucy of Pinktape, you could have sorted it in the committee stage in December. 🙂

    On reflection maybe your ennoblement would be a good idea.

  5. Or in a year or two they could make you a Bishop and give you a seat in the House of Lords that way!

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