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?

        Also, it has been highlighted that the costs of complying with contact activities could pose a problem for many families. Chris Goulden, chair of their Children Committee commented that the cost of attending some contact activities could range from £200 - £2500 and other families on low incomes will have to foot the bill themselves, unless they can prove that payment would case them financial hardship, they would not be covered by s.11F(1) to receive legal aid to cover the cost of attending contact activities. People on working tax credits or disability benefits are often not eligible for legal aid and these costs would come at a time when families are already having to make significant financial adjustments as a result of the family break-up.

Monitoring Contact (s 11H)

        When making a contact activity condition or direction the court can require a family proceedings officer to monitor whether the condition or direction is being complied with and to report to the court any failure to attend an activity. Besides, the proceedings officer will be under a duty to carry out a risk assessment if they suspect that a child is at risk of harm.

        The new role for Children and Family Court Advisory and Support Service (CAFCASS) in monitoring contact and providing advice and assistance on maintaining contact will hopefully be a great leap forward in ensuring contact orders are complied with. The emphasis on CAFCASS officers facilitating contact on the ground rather than simply reporting on the problems surrounding contact when things have gone wrong, and making recommendations for the future, is likely to have a real impact for both parents in improving and maintaining contact arrangements.

        On the contrary, monitoring can last for a maximum of 12 months. It can be said that by allowing for monitoring to continue for as long as 12 months, with the option of a further report thereafter, this new provision increases the chances of litigation continuing for longer than might be thought desirable.

Enforcement Orders (s 11J)

        As far as enforcement orders are concerned, for years, the courts have struggled to square the circle of enforcing orders for contact without damaging the welfare of the child.  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.

        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. 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.

        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.

        On the other hand, given that the courts have been reluctant to imprison resident parents, the deterrent effect of it is very limited. Besides, the new enforcement order of  unpaid work is more practical and enforceable now. It has been said if courts show a greater inclination to impose the new enforcement orders, recalcitrant parents may be more readily deterred from infringing court orders.

Compensation for financial loss (ss 11O)

        One of the complaints most frequently heard from parents in contact disputes is that they have suffered financially as a result of the failure of the other parent to comply with agreed or ordered arrangements. The 2006 Act addresses this problem by introducing a new statutory scheme for awarding compensation for broken contact orders under the new section 11O of the 1989 Act.

        Deriving from the results of a research, there was also an almost equal split between those who thought that financial compensation will be an effective sanction and those who didn’t. With regard to financial compensation, most people believed that parents would be unable to afford to comply with this sanction. It was also felt it may ‘indirectly cause further hardship to children’. As parents have to make compensation for financial loss while supporting the child.

Overall Effectiveness of the provisions of ss 11A - 11P Children Act 1989

        In the opinion of (Freeman, 2007) none of these additions will solve the problem. There will remain parents who will not allow contact and parents, who are less censured, who are not interested in maintaining a relationship with their children. One recent study (Trinder et al., 2002) concluded that couples who rely on the law to resolve contact disputes aggravate the problem. By contrast, those parents who resolve matters without recourse to the law avoid stress and distress. It has been doubted (Herring, 2003) whether contact which is coerced by threat or pressure is effective contact conducive to a child’s best interests.

        How effective the new enforcement provisions will depend on the readiness of the courts to impose unpaid work requirements. It has been discussed in (Baker, 2006) that presumably it is hoped that being forced to undergo unpaid work will teach parents who breach contact orders to refrain from similar actions in future. Yet many parents who fail to comply with contact orders are genuinely convinced that their actions are in the best interests of the child. It is open to question whether such people will change their minds as a result of being forced to do unpaid work. There is surely a risk that their attitudes will become ever more entrenched. If so, judges will still continue to be faced with the same inadequate options to deal with contact disputes.

        It has been said that in (Herring, 2003) court-based intervention may not be an effective way of dealing with a hotly contested contact dispute. It is better to assist and inform the couple so that they can reach an agreement between themselves. It may be questioned whether or not telling parents about the importance of putting children first will be of much assistance.

Conclusion

        In conclusion, the new powers significantly extend the range of options available to judges in their efforts to make contact work. There are, however, concerns as to whether it will work. Several problems have been highlighted with the new provisions of ss. 11A - P and the effectiveness is yet to be seen. 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.

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