DO you consider that the provisions of ss11A-11P children act 1989 will equip the courts more effectively to deal with contact disputes in future?
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Under s.8 of the Children Act 1989 the court may make a contact order requiring the resident parent to allow contact with a person specified therein. This is usually the non-resident parent. A breach of such an order constitutes contempt of court and may be sanctioned through a fine or imprisonment of the resident parent.1 Alternatively, in some cases, residence of the child may be transferred to the other parent. There has been much dissatisfaction with the previous law. There has been criticism of the use of imprisonment, branding it as a sanction which may be detrimental to the child's welfare2 and thus in conflict with the paramountcy principle. Another criticism of the sanctions is that they are hardly used and, therefore, ineffective.3 As a result the Children and Adoption Act 2006 amended the Children Act 1989 to introduce two new sanctions. Section 11J introduces the sanction of unpaid work where the court is satisfied, beyond all reasonable doubt, that a breach has occurred and that there is no 'reasonable excuse' for the breach. 4 Moreover, s11O introduces financial compensation for loss caused by the breach, such as the cost of a missed holiday. Contact activity directions and conditions has also be introduced (ss. 11A-G) with the aim to facilitate child contact, by providing the courts with "more flexible powers". These include parenting classes and other specified activities such as counselling or anger management courses.5 Contact activity directions will be made only whilst a court is considering making a contact order.6 Conditions will be imposed where a final contact
Typically, the emotional harm caused to a child if its mother is sent to prison has been thought to outweigh the advantages of any contact that may thereby follow. As a result, the process of enforcing contact was often long and drawn-out, and frequently unsuccessful.18 Prior to the implementation of the reforms enacted in the 2006 Act, the courts' powers to enforce contact orders were limited to contempt proceedings, for which the sanction was either a financial penalty, often unrealistic, or imprisonment of the resident parent, with almost invariably adverse consequences for the child's welfare.19 The new sections introduced the "unpaid word requirement" designed to broaden the courts' powers to secure compliance with contact orders without infringing the child's welfare. If the court is satisfied beyond reasonable doubt that a person has failed to comply with a contact order, it may make an 'enforcement order' imposing on the person an unpaid work requirement.20 In an interesting study (Dyer, 2008) it was shown many agreed, 52.8% of the legal professionals surveyed were in the view that unpaid work would not be practical for many parents due to, for example, childcare or employment commitments. As a result, it was felt probable that this measure will not commonly be utilised. Furthermore, according to the study (Dyer, 2008) there was a 56:44 split between those who thought that unpaid work would be successful in practice and those who didn't. Some commented that if harsher sanctions, such as imprisonment, were ineffective, half-hearted measures such as this would also not work.
As far as the financial compensation loss is concerned, it was felt that financial constraints on the parents may simply prevent courts from imposing the new sanctions. Until now it was felt that measures to enforce contact orders are likely to remain of limited significance until the underlying problems relating to the promotion of contact are resolved. (1727 words) 1 Lowe, N. and Douglas, G. (2007). p.568 2 Baker, J. and Pressdee, P. (2006). p.185 3 Ibid. p.170 4 Children Act 1989, S.11J(2) 5 Children Act 1989, S.11A(5) 6 Children Act 1989, S,11A(7) 7 Ibid. 8 Baker, J. and Pressdee, P. (2006). p.169 9 Ibid. p.173 10 Dyer, C., McCrum, S., Thomas, R., Ward, R. and Wookey, S. (2008). 11 such as counselling or anger management courses 12 Baker, J. and Pressdee, P. (2006). Contact: The New Deal. Jordans Publishing. p.179 13 New Contact Enforcement Provisions in Force. Available at: http://www.familylawweek.co.uk/site.aspx?i=ed28453 (Accessed: 10 December 2008). 14 Herring, J. (2006) 15 Children Act 1989, S.16(A) 16 Fisher, M. and Whitten, S. (2006). p.35 17 Freeman, M. (2007). p.240 18 Baker, J. and Pressdee, P. (2006). Contact: The New Deal. Jordans Publishing. p.170 19 Ibid. p.185 20 Children Act 1989, s 11J(2). 21 Baker, J. and Pressdee, P. (2006). p.190 22 Dyer, C., McCrum, S., Thomas, R., Ward, R. and Wookey, S. (2008). 23 Fisher, M. (2006). p.34 24 Baker, J. and Pressdee, P. (2006). p.197 25 Herring, J. (2006). p.520 26 Ibid. 27 to direct parties to undertake contact activities, to monitor contact arrangements closely through CAFCASS, and to to subject recalcitrant parents to do unpaid work and pay compensation if they breach contact orders
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