Additionally employed by the courts to achieve a balance is supervised contact and indirect contact. Supervised contact essentially means that during contact another adult is present. This type of contact is exemplified by the case of RE H ,a contact dispute involving the Father's illness causing violent behaviour towards his wife, which the wife argued was dangerous to the children. The Court found taking into account that the father in his current state of mind was unlikely to endanger his children, however he did have a physical capacity to be able to harm them which was a risk that could be contained with the use of “adequate supervision and professional vigilance”.This allows the courts to allow the child contact whilst also targeting parental concerns through having an adult present ensuring the child’s well being during contact. Where supervised contact is thought to be the only way of ensuring the children can develop their relationship with their none resident parent the courts are willing to grant supervised contact unless it not in the child’s best interests, similarly the courts are prepared to allow the child indirect contact by phone, email and letters. This is an effective way for the court to grant contact where face to face contact is not appropriate to protect children, indirect contact is the mechanism through which children can still maintain a relationship with their none resident parent through indirect forms of contact without putting their safety into jeopardy.
On the other hand the courts fail to achieve a balance in relation to the child interests being the courts paramount consideration in contact disputes. Section 1 of the Children partially adapted sets out the fundamental principle of children law, providing “when a court determines any question with respect to: (a) the upbringing of a child, or (b) the administration of property…. The child’s welfare shall be the courts paramount consideration”. The Court in Re O held that orders terminating contact would only be made when there is no feasible alternative. The court's imposed by of the Children Act 1989, must treat the welfare of the child as paramount in addition to safeguarding and promoting the best interests of every child. In light of the father's behaviour in that case, an order for contact was not in the child's best interests. Critics feel as a result parental concerns are dismissed even when they are legitimate. Research by Alison Perry raised two significant findings “the legal system has a tendency to downplay genuine parental concerns might have of a potential serious nature…second was that in a quest to fulfil the child’s long term interest in not losing contact…it is arguable that insufficient attention is payed to the child’s… well being- the bias in favour of contact can clash with the welfare principle”.
Additionally abuse and more seriously murder occurs in various contact cases. This is exemplified by Hilary Saunders examination of the homicides of 29 children from 13 families who were murdered by their fathers during contact between 1994 and 2004. In which domestic violence was involved in 11 of the 13 families, and in 5 of the cases contact had been ordered by the court. This suggests the courts favour of contact underestimates the impact of domestic violence. This view is purported by Ophelia Mills stating “the law embodies a presumption in favour of contact that underestimates the negative impact of domestic violence on children” . Evidence suggests the courts are biased towards granting contact, thus failing to outweigh the serious risks that parental concerns are composed of.
In final analysis whilst the law places considerable importance on the need to balance the child’s right to enjoy contact with parental concerns, in practice this is not always effective. Whilst the courts make an effort to achieve a balance with the use of assessment by Cafcass/local authorities, this can often be incorrect and fail to identify risks resulting in dire consequences. Additionally the courts placing paramount consideration on children’s welfare causes parental concerns to be dismissed which in turn causes cases of abuse/murder resulting from enforced contact cases. However the importance of contact cannot be ignored by the courts because contact is essential to a child’s upbringing and well being and as evidence shows can prevent criminal behaviour in later life, this is addressed by the courts use of supervised and indirect contact which is overall successful in allowing the child to develop a relationship with their non resident parent and maintaining their safety.
(b) Do you consider the provisions of ss11A-11P Children Act 1989 will equip the courts more effectively to deal with contact disputes in the future?.. Your answer should be fully reasoned.
Contact disputes tend to be predominantly problematic for the courts in terms of dealing with applications for contact and actually enforcing them. To deal with this The Children Act 1989 has been amended through the inclusion of ss11A-P which gives the courts supplementary powers when dealing with disputes of such a nature. Sections 11A-G concern the powers the courts have in regards to contact activity directions which they can apply in order to uphold contact. Whilst ss11J-N essentially sets out the way in which the courts can reprimand parents who not adhere to contact arrangements. Under ss11 O-P courts possess powers to order a parent to pay compensation for financial loss resulting from breach of an order. ss11H allows a CAFCASS officer to observe the parties compliance of contact orders. Whilst the whole purpose of such provisions has been to aid the courts in future challenging contact disputes, in practice whilst in some ways this seems effective, in other ways it makes contacts disputes even more problematic for the courts to deal with, particularly in relation to causing even more animosity between the parties involved and towards detest of the courts system.
Firstly where the courts feel contact can be promoted by use of contact activity directions they can impose them under ss11 A (2). ss11A (3) refers to a contact activity as “a direction requiring an individual who is party to the proceedings to take part in an activity that promotes contact with the child concerned”. Under ss11A (4), the direction by the court will refer to the activity to be enforced and who will provide the activity. The types of activities which can be employed by the courts are listed by ss11A(5) as “programmes, classes and counselling or guidance sessions of a kind that- (i) may assist a person as regards establishing , maintaining or improving contact with a child; (ii) may by addressing a person’s violent behaviour, enable or facilitate contact with a child”. This essentially means the courts can impose activity directions for the parties involved which are thought to be a way of maintaining contact and strengthening relations between parties involved, such as through attendance of programmes and classes related to the child’s education or interest or which addresses the parents behaviour. ss11C gives the courts additional powers in relation to them being able to enforce contact activity conditions. Under ss11C (2) “a contact order may impose , or the contact order may be varied, so as to impose a condition(a ‘contact activity condition’) requiring an individual falling within subsection (3) to take part in an activity that promoted contact with the child concerned”. ss11C (3) applies to an individual who is either the person the child lives with, or the person whose contact with the child is referred to in the order. Like ss11A, ss11C (4) provides the condition will set out the activity including who will provide the activity. However before the court can actually enforce contact activity directions they must satisfy matters under ss11E which fall within subsections 2-4. ss11E (2) provides “the activity proposed to be specified is appropriate in the circumstances of the case”, whilst ss11E (3) states “the person proposed to be specified is provided a place to which the individual who would be subject to the direction (or the condition) can reasonably be expected to travel", finally under ss11E (4) “the court must obtain and consider information about the individual who would be subject to the direction”. This aspect makes it difficult for courts in contact dispute as having to follow these procedures to be able to enforce Contact activity directions and condition under ss11A-G which can be a lengthy procedure making contact disputes unnecessarily prolonged and complicated, and importantly this delay conflicts with the courts interpretation that unnecessary delays can have a detrimental effect on contact and relations between the parties. To some extent these powers will aid the courts in future disputes as these can help the courts to enforce contact where parents want to reform and gain contact, and through the use of contact activity directions and conditions parents can change their behaviour and can maintain and improve the relationship with their children through contact.
Difficulties arise though when considering that many parents may be against the courts imposing such directions/conditions because they might feel this is an unnecessary interference of their right to contact with their children and so they might choose not to abide by such provisions. Additionally these provisions in practice may be in conflict with the parent’s rights under Art 8: the right to family life under the European convention right which states (1) “everyone has the right to respect for his private life, his home and his correspondence. And (2) “there shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society…or for the protection of the rights and freedoms of others”. Moreover parents feel such provisions have the effect of making contact seem forced and unnatural as is the case, when parents are dissatisfied with supervised contact as they feel it does not allow contact to be as a valuable time as it should be due to the fact that is too controlled to be natural.
Additionally the courts have powers under ss11J-N to deal with non-compliance of contact orders. Under ss11J (2) if “the court is satisfied beyond reasonable doubt that a person has failed to comply with the contact order, it may make an order (an ‘enforcement order’) imposing on the unpaid work requirement”. The court will not apply such a requirement under ss11J (3) if “the person has a reasonable excuse for failing to comply with the contact order”. This means the courts can impose punishment of failing to abide by contact orders on parents by imposing them to undertake unpaid work which can be for example community service. ss11K provides provisions which the court must adhere to in order to make an enforcement order this essentially is that Under ss11K(1 the person to whom the enforcement order is made against must have had a copy of the terms or have been “otherwise informed of the terms” to which they have not complied with in the contact order. In addition to court under ss11L must have regards to under subsections 1 and 2 of this section, namely that (1) “the enforcement order proposed is necessary to secure the person’s compliance with the contact order or any contact order that has effect in its place” and (2) “the court must satisfy itself that provision for the person to work under an unpaid work requirement imposed by enforcement order can be made in local justice area in which the person in breach resides or will reside”. Whilst in practice this may seem to aid the courts in future contact disputes in terms of allowing the courts to adequately punish parents for failing to abide by contact orders , and at the same to place pressure on those who failed to comply with the contact order in the future, to some extent this is a valid interpretation because the court is has previously been limited in mechanisms designed for punishment for not following and enforcement of contact orders, especially since the courts are reluctant to imprison parents for such disobedience, so the provision of unpaid work is seen by the courts as a effective but also more lenient way of punishing the parties involved and so as to enforce contact orders. However this can cause problems for the courts in future disputes, because parents may still not comply with the courts provisions under this section will unnecessarily waste court time, equally important it can be argued that this does not actually benefit contact, since having to do unpaid work can limit the alreadly limited time of contact that parents have, so the imposition of unpaid work may seem not have any beneficial effect.
Moreover the courts have powers under ss11O-P to order compensation for financial loss. ss11O (2) allows the court to impose compensation for financial loss where “an individual has failed to comply with a contact order” and the person with whom the child lives or the person whose contact with the child concerned under the order, suffers financial loss “by reason of the breach”. Additionally under ss11H a CAFCASS officer can monitor the compliance of contact orders. Whilst this helps the courts in future dispute by providing a form of reparation to a party who is wronged by breach of the contact order, the problem arising is that this may serve to further weaken relations between the parties and the children involved in the contact dispute, which may already be severely weak due to the bitterness that contact dispute can be susceptible to.
In Final Analysis to deal with contact disputes, ss11A-P of the Children Act 1989 was implemented to give the courts additional powers. To some extent the provisions are successful in providing the courts help in future contact disputes as they allow the court the mechanisms by which they can impose conditions and directions on contact when they feel it is required to promote contact under ss11A-G, they are able to impose either unpaid work or compensation for financial loss for breach of contact orders under ss11 J-P and equally importantly to be able to enforce contact order. However to some extent these provisions make such cases even more complex for the court as the process can be lengthy, it can lead to conflict the European Convention of Humans Rights under art 8 and the enforcement of punishment by the courts can further weaken relations between the parties which goes against the whole purpose of such disputes coming to court, that is to resolve them. Contact being a complex issue, it is difficult to suggest what the courts need to help them in future disputes, but above all the courts need to be able to enforce contact orders with the end result of improved relations between the parties rather than more hostility.
Child and Family Court Advisory and Support Service
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