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…