New Section 11 Children Act 1989 Provisions Implemented

Section 11 A – P (Children Act 1989) Guidance
Guidance to Cafcass Practitioners on their roles in supporting the
courts in their use of the section 11 A - P provisions, Children Act 1989
(as inserted by the Children and Adoption Act 2006)
1. Introduction
1.1 On 8 December 2008, sections 1-5 and 8 of Part 1 of the Children and
Adoption Act 2006 came into force. Their effect is to amend section 11 of the
Children Act 1989, by inserting sections 11A-11P into the 1989 Act. These
provisions confer additional powers on the courts, when they are dealing with
applications for contact orders made under section 8 (Children Act 1989).
The provisions also place a number of specific new duties on Cafcass. This
guidance describes the new provisions, in terms of what Cafcass officers
should do in supporting the work of the courts. The guidance has been
drafted in consultation with the Magistrates’ Association, the Association of
HM District Judges and the President of the Family Division, Sir Mark Potter,
who has disseminated this guidance to the judiciary, with his endorsement of
its contents. This means that the courts will be anticipating that Cafcass will
undertake its work in the ways described below.
2. Making and Monitoring of Contact Activity Directions and Conditions
(sections 11E and 11G)
2.1 Section 11E of the (amended) Children Act 1989 enables the court to
ask for information from a Cafcass officer (‘an officer of the Service’) in the
process of making a contact activity direction (CAD) or contact activity
condition (CAC). Section 11G enables the court to ask the Cafcass officer to
monitor and report on compliance with any CAD or CAC. A CAD can be given
at any time when the court is considering making, varying or discharging a
section 8 contact order. A CAC can only be made when a court makes or
varies a section 8 contact order.
2.2 There are to be three types of contact activity:
- information/assessment meetings about mediation (provided by LSCapproved
providers on a one-off basis, free of charge to both parties if
either party is publicly funded)
- parenting information programmes (provided by DCSF-commissioned
providers, typically involving two two-hour groupwork sessions, free of
charge to those parties who are publicly funded or who would experience
hardship if they were required to pay (the financial regulations may be
found at http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082940_en.pdf )(NB
mediation itself cannot be ordered by the court)
- domestic violence prevention programmes (provided by DCSFcommissioned
providers) involving an intensive programme of 60 hours’
intervention. These are also free of charge to those who are publicly
Section 11 Children Act 1989 as inserted by the Children & Adoption Act 2006: Guidance
funded or who would experience hardship if they were required to pay (the
financial regulations may be found at
http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082940_en.pdf).
2.3 Before making a CAD or CAC, the court must satisfy itself about the
appropriateness of making a direction/imposing a condition. The court must
consider:
- the local availability of contact activities (information about approved
providers may be found at
http://cafint01/Intranet/knowledge_base/partnerships/partnerships_map
.aspx)
- the accessibility of the location of the activity,
- the suitability of the party to participate in the activity (taking account
of religious beliefs and work/education commitments), and
- the likely effect of undertaking the activity.
The court must also consider the suitability of the provider, though this has
been addressed by ensuring that all providers are approved by either the LSC
or DCSF (on behalf of the Secretary of State). The child’s welfare is the
court’s paramount consideration. A Cafcass officer is under a duty (under
section 11E(7)), if requested by the court, to inform the court about all of these
issues.
2.4 In practice, the Cafcass officer is very likely to have suggested to the
court, either at the first or second hearing in a contact case, that participation
in a contact activity might be beneficial. The potential benefits of a CAD/CAC
might well have been identified by the Cafcass officer at the first hearing,
either in a Schedule 5 letter to the court or orally. If recommended
subsequently, the recommendation is likely to be made in the Initial Analysis
and Recommendations on the basis of a Cafcass assessment. If the court
accepts such a recommendation, the court may then ask the Cafcass officer
to provide information about the issues listed at 2.3 above.
2.5 In practice, the attitude of the parties towards the potential activity will
be a key consideration to address, not least because of the possibility that one
or both parties might be required to pay for the cost of the activity. This will be
an important factor to address in any oral or written report to the court. In the
case of mediation assessments, those parties in cases whether neither
person is publicly funded will be required to pay (a sum of about £80). Both
parties will be required to participate, but can initially be seen separately. In
the case of parenting information programmes, a self-funding party will be
expected to pay about £200. In this type of contact activity, it will generally be
the case that both parties are required to participate, though the programmes
will be delivered to parties separately from one another. In the case of
domestic violence prevention programmes, they will be focused on one party,
who has conceded, or where it has been found through a finding of fact, that
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Section 11 Children Act 1989 as inserted by the Children & Adoption Act 2006: Guidance
they are responsible for causing harm (as defined by the President’s Practice
Direction dated 9 May 2008 ‘Residence and Contact Orders: Domestic
Violence and Harm’). In addition, support services are likely to be offered to
any adult victim of harm and to any current partner of the perpetrator. For a
party who is not eligible to be subsidised, the cost of participation in the
programme (up to £2,500) is likely significantly to influence the potential
participant’s perspective. In this type of intervention, a suitability assessment
by the potential programme provider will be undertaken, in addition to any
work carried out by Cafcass, in order to give the best possible information to
the court about the party’s suitability and the likely impact of the activity.
2.6 In accordance with section 11G, the court may decide to ask the
Cafcass officer to monitor whether the party (or, more usually, the parties)
attended the contact activity and to report to the court on any non-compliance
with the CAD/CAC. Cafcass is under a duty to provide this information to the
court. In addition, the court may also ask Cafcass to provide information
about the impact, beneficial or otherwise, of attendance, in terms of helping to
address the issues in the case. Both elements will require there to be liaison
with the provider, information from which should be reported to the court,
together with any additional Cafcass analysis and recommendations. In some
cases, the Cafcass officer will have been asked by the court to have other
forms of involvement with the parties and/or the child during the period of
participation in the contact activities, the outcome of which should also be
reported to the court.
3. Requirement to monitor a contact order (section 11H)
3.1 When the court is making or varying a section 8 contact order, it may
ask a Cafcass officer, who is under a duty to respond to the request, to
monitor whether there is compliance with the terms of the order and to report
to the court about compliance-related matters. This may relate only to the
period when the proceedings are before the court or it may, alternatively or in
addition, relate to a period (of up to 12 months) after the proceedings have
ended.
3.2 With nearly 40,000 contact orders having been made in 2007, this
provision has major potential resource implications for Cafcass. It has been
agreed with the President that the general assumption is that the provision
should not be used in ‘consent order’ cases where proceedings have ended.
Instead, consideration of its use should be limited to those cases where the
issue of contact has remained in dispute during the proceedings and where a
trial and judicial determination of the contact issue has taken place. For
example, where there is a strong feeling of dissatisfaction on the part of one
or both parties, the court may consider that the imposition of a monitoring
requirement is appropriate. Unlike the situation with Family Assistance
Orders (see Section 6), the consent of the parties is not required.
3.3 The court may end the proceedings, having made a contact order with
a monitoring requirement, or it may set a further date for a review hearing
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Section 11 Children Act 1989 as inserted by the Children & Adoption Act 2006: Guidance
(usually before the same judge). In either event, it is essential that timely
monitoring takes place in the immediate aftermath of the contact order (and
monitoring requirement) being made. This monitoring is likely primarily to take
the form of telephone contact with both parties and, where children are of
sufficient age and level of understanding, also with the children. To assist in
this process, the Cafcass officer should consider recommending to the court
the type of arrangements that need to be included in the contact monitoring
requirement to enable it to be operated effectively. For example, the parties
may need to be directed to provide telephone contact details to Cafcass, to
respond to phone calls, voicemail messages and other communications from
Cafcass and to facilitate communications between Cafcass and the subject
children. This is provided for by section 11H(8). The focus of the monitoring
should be on the issue of whether there is compliance with the terms of the
order. The act of monitoring is neither a punitive nor a welfare intervention.
Where early contacts with the parties and children reveal that compliance is
adequate, it may be appropriate to reduce the frequency with which
monitoring takes place, especially in the case of requirements that are of
many months’ duration.
3.4 The court may request that it be notified in writing about the outcome of
the monitoring, either at the end of the monitoring period if compliance has
been adequate, or at an earlier stage if the Cafcass officer forms the view that
compliance is inadequate. Non-compliance may take the form of an absolute
refusal by the resident parent to allow contact to take place, which may occur
at the point at which the order is made or at a later stage. At the other end of
the spectrum, non-compliance may take the form of a chronic series of more
minor failures to observe the terms of the contact order. Such chronic cases
should not be allowed to ‘drag on’ across many weeks or months. Instead, the
court should be notified that, in the view of the Cafcass officer, there has been
non-compliance, together with details of the series of minor (or more major)
infractions. The court should also be asked for guidance about how it wishes
to proceed.
3.5 On receipt of such a notification, the court may, if a review date has
been set, choose to bring forward a hearing in order to consider the matter.
Alternatively, if proceedings are at an end, the court will need to await the
making of an application for enforcement (see Section 4 below) by a party. In
either case, the Cafcass officer will need to ensure that any letter of
notification to the court is also sent to both parties. In addition, the Cafcass
officer will need to consider how this letter’s contents might best be
communicated to the affected children. Once non-compliance has been
notified to the court, the parties and, in the most appropriate way, the children,
monitoring should continue while the guidance of the court is awaited about
how it wishes to deal with the reported non-compliance.
3.6 The new provision for the imposition of contact monitoring
requirements may replace the use of addendum reports in many contact
cases, with brief reports instead being focused on the facts of compliance.
The task of monitoring compliance with contact orders is one that might most
appropriately be undertaken by Family Support Workers, working in
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Section 11 Children Act 1989 as inserted by the Children & Adoption Act 2006: Guidance
consultation with the Cafcass officer who has undertaken the bulk of the work
during the previous proceedings. This arrangement may also be an effective
one where contact monitoring is ordered as part of Cafcass’ intervention
during ongoing proceedings
4. Making and monitoring of enforcement orders (sections 11L and 11M)
4.1 Where a contact order, to which a warning notice is attached, is
considered to have been breached, an application for an enforcement order
may be made. If the court is satisfied beyond reasonable doubt that a person
has failed without reasonable excuse to comply with the contact order, it may
make an enforcement order imposing an unpaid work requirement (of
between 40 and 200 hours) on the person who has failed to comply with the
contact order. Cafcass will be sent by the court a copy of each C79
enforcement application that is received, to enable Cafcass to undertake
updating screening checks with the relevant local authority and the police (see
the Cafcass Private Law Enforcement Interactive Pathway for further details).
Some applications will be made subsequent to a Cafcass notification of noncompliance,
while others will arise in cases where Cafcass has not recently
been actively involved. In either type of case, the outcome of the checks
needs promptly to be notified to the courts, together with any other requested
information. The court has discretion to join the child as a party to
enforcement proceedings. The child is not automatically a party even where
he or she was a party to the original proceedings which led to the making of
the contact order. Cafcass may be asked to advise the court whether the child
should be joined as a party. In practice it will rarely be necessary, and
Cafcass Legal can advise in cases of difficulty.
4.2 Before making an enforcement order against a person who has failed
without reasonable excuse to comply with a contact order, the court is
required to satisfy itself that an enforcement order is necessary to secure the
person’s compliance with the contact order and has to consider the likely
effect of an enforcement order on the person, including in terms of any conflict
with the person’s religious beliefs or their education/work arrangements. The
court also has to be satisfied that provision for unpaid work is available locally.
A Cafcass officer is under a duty to provide information about suitability and
availability if the court requests it. In order to inform the court about the local
availability of unpaid work, it will be necessary to liaise with the local National
Probation Service (NPS), which stands ready to provide unpaid work to those
ordered by the court to undertake it. If the court does not grant leave to
Cafcass for disclosure of information about the case to the NPS, the court’s
leave should be obtained before doing so. When considering whether to
make an enforcement order with an accompanying unpaid work requirement
the court must take into account the welfare of the child who is the subject of
the contact order that has been breached, but the child’s welfare is not its
paramount consideration.
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Section 11 Children Act 1989 as inserted by the Children & Adoption Act 2006: Guidance
4.3 On making an enforcement order, the court is to ask a Cafcass officer
to monitor compliance with any unpaid work requirement that it has imposed
when making an enforcement order. The monitoring of individuals’
compliance with unpaid work requirements will be undertaken by the NPS, on
a similar basis to that followed with those referred to it by the criminal courts.
The Cafcass officer will need to notify the NPS (which will fulfil the role of the
‘responsible officer’), which in turn will report to Cafcass on compliance. In
cases where the NPS determines that there has been non-compliance without
reasonable excuse, this will be reported to Cafcass. Similarly, if an individual
is or becomes unsuitable to perform unpaid work, Cafcass will also be notified
of this by the NPS. In both instances, the Cafcass officer must report such
matters to the court. In addition, there may be other matters that are reported
to Cafcass by the NPS for onward communication to the court, such as a
situation in which an individual moves from their address without providing a
new address.
5. Compensation for financial loss (section 11O)
5.1 Where a contact order has been made and, as a result of one party’s
non-compliance with its terms, the other party suffers financial loss, that party
may apply to the court for compensation to cover the cost of that loss. While
Cafcass is unlikely to be aware of such applications having been made, it is
possible that the court will seek information from Cafcass about the welfare of
the child, given the requirement placed on the court by section 11O(14) to
take into account the welfare of the child concerned. Cafcass should respond
in accordance with the specific request made by the court. The court has the
discretion to decide whether to join the child as a party. (See para 4.1.)
6. Family Assistance Orders (FAOs) (section 16) and Risk assessments
(section 16A).
6.1 In addition to the provisions relating to contact with children, which
amend section 11 of the Children Act 1989, Part 1 of the 2006 Act
made two other amendments to the 1989 Act, both of which were
implemented on 1 October 2007. Section 16 of the Children Act 1989
has been amended to remove the ‘exceptional circumstances’
requirement relating to the making of FAOs and has increased their
maximum duration from six to twelve months. Cafcass guidance on
FAOs may be found at
http://www.cafcass.gov.uk/publications/policies.aspx. Section 16A of
the Children Act 1989 now places a duty on Cafcass to make risk
assessments (and report them to the court) wherever there is cause to
suspect that a child is at risk of harm. Cafcass guidance on risk
assessment is set out in the Cafcass Safeguarding Framework.
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