Just as you thought it was safe to go back in the courtroom…

The snappily titled and easy to read Children Schools and Families Act 2010 has landed on our virtual desks. Not yet in force owing to the impending election ('What election?' I hear you say) the Bill made it through 'wash-up' and received Royal Assent only moments before Parliament was dissolved, to gasps of relief all round. Or groans.

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Its a b*tch of a document (that's local legal jargon) and I'm still digesting it piece by piece in between hearings and nappy changes - but I will be cooking up a summary of it for you. My preliminary observation is that it is convoluted, complicated and will probably benefit only the legal profession who will be instructed to deal with all the applications prompted as we all try to work out what it all means. And in a special election double whammy it contains a whole raft of future changes which will be brought in 18 months down the line - just at the moment that everyone has worked out what the law is. I can tell you that fat cats like me are rubbing our greasy little paws with glee. Or I would be if I didn't have such a god awful headache from trying to unpick the unsightly mess that is the CSFA 2010.

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To experience the pain yourself first hand you may wish to visit the Office of Public Sector Information where you can view the Act alongside the explanatory notes, and also a helpful article in Family Law Week here (written when the Act was still a twinkle in the Queen's eye (at Bill stage) but still helpful).

Children & Adoption Act – postscript

Further to my post yesterday, there is a piece in The Times today about the new provisions and John Bolch at Family Lore has posted the new court forms which are in use as of today. Resolution are quoted in the article by Frances Gibb, their full press release is here.

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The quote in The Times' article from 'a family judge' seems to me to be a bit misleading - it seems to suggest that the new provisions are giving a 'go directly to jail' card to courts - but in fact the courts have the power to imprison already, and the new provisions are clearly intended to be a precursor to committal to prison, which is now only likely to be used if contact activities and community service orders have failed. And before the court makes an enforcement order it must not only be satisfied beyond reasonable doubt that there has been a breach of a contact order AND have dealt with any defence of 'reasonable excuse', but must ALSO first obtain a raft of information and satisfy itself that the order is really necessary and proportionate - they will not be made in every case of breach, in fact I venture to suggest these orders will be made very rarely and will probably make committals to prison even more infrequent because they provide and alternative sanction. 

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The other inaccuracy in the article is the suggestion that parents will be criminalised by the provisions - although the penalty of community service is drawn from the criminal law, a person subject to an enforcement order will NOT get a criminal record and their details will not be entered on the national offenders register - they will be punished for what is effect a contempt of court (although the orders are intended to be an 'encouragement' to compliance rather than punitive for the sake of punishment) but they will NOT be criminalised. What is absolutely right is the concern raised by Chris Goulden at Resolution about the funding of contact activities and the lack of clarity about who will provide them. I am trying to finalise the details of a seminar on this topic for Thursday and am still waiting for the promised publication on the DCSF website of the list of contact activity providers.

At Long Last…Contact Activity

The contact provisions of the Children and Adoption Act 2006 are finally coming into force on 28 November following a brief consultation in the summer. Draft rules have been published. See Family Law Week for links to the relevant MoJ pages. What is unclear is how this will all work in practice. There will be additional burdens placed upon CAFCASS and no doubt at least initially confusion about what service providers can assist the court in implementing orders (for example perpetrator programmes). As with so many things involving contact disputes the courts' theoretical legal powers may be difficult to apply in practice because of resources issues.

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One thing's for sure - family practitioners need to refresh their memories about the long dormant contents of the 2006 Act, bone up on the rules that will apply and try to work out what is available in their area to make the new powers come to life.