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Looking at ‘The Children and Adoption Act’ – identify and trace the development of the policy in its present format
In 2005 the Children and Adoption Act was created in response to a green paper entitled Parental Separation: Children’s Needs and Parents’ Responsibilities (2004). This new bill addresses issues both in the realm of contact between children and separated parents, and foreign adoption issues. However, for the purposes of this essay the researcher will focus on the issues of contact, as these are the most pressing and widely talked about aspects of the bill.
Firstly, we will outline the major points of this legislation. As a response to the green paper and an update on both the 2002 Making Contact Work report and the 1989 Children Act, the Children and Adoption Act (2005) aims to address certain key issues of contact between separated or divorced parents and children.
The major part of the legislation deals with new processes and powers given to courts when issuing and enforcing contact orders. Firstly, a new initiative known as ‘contact activity directions’ is now available to the courts. These directions allow the court to help promote contact between non-resident parents and children through various courses or counselling. For example, by going for psychiatric or physical treatment to improve the likelihood of cooperation between children and the separated parents.
Additional powers granted to the courts are also an important part of this bill. The court now has added power to monitor contact and to report back to the court about the maintenance of such orders. Further, the court now needs to attach a notice of warning to contact orders stating the consequences of a breach of the order. Family assistance orders can now be issued in more than just exceptional circumstances, allowing for a greater opportunity to develop cooperation and contact arrangements.
The way in which a breach of a contact order can be punished has also changed. In the past, options open to the court were to put the parent in breach in prison or fine them an amount of money, transfer residence of the children to the other parent, or do nothing. These options were often inadequate or not available in all cases, and so the laws have been changed. A parent in breach of a contact order can now face what is known as an ‘enforcement order’ which can be applied for by either parent or the children concerned. This enforcement order will invoke a requirement for unpaid work on the offender, meaning they will have to carry out a certain amount of duties or work for no fee – much like community service. The court needs to be satisfied beyond reasonable doubt that the person is failing or has failed to comply, and that the making of an order is necessary to secure compliance with the order. Once an order is initiated, a Children and Family Court Advisory and Support Service (CAFCASS) officer will monitor the situation and report back to the court about compliance. If breach occurs again then the order can be extended or increased as the court sees fit.
Another way in which a breach can be punished by the court is through compensation to the other party for financial loss suffered as a consequence of the breach. This is meant to be compensation rather than a punitive payment, and is based upon the financial situation of the offender as well as the needs of the child.
These are the main areas of interest in the new Children and Adoption Act in terms of contact, and will be discussed in detail throughout the rest of the essay. In order to do this, the reasoning and objectives behind this new bill first need to be look at. The three main objectives are as follows:
- To promote and stimulate contact activity between children and non-resident parents
- To improve the monitoring of compliance with contact orders and reduce delays in complying with these orders.
- To give the courts increased powers to punish breaches of contact orders that punish the offender and result in compliance rather than harming the welfare of the child.
These objectives are in response to a number of issues raised over the last few years. Of these issues, the most notable is the bias towards mothers in terms of contact, with the majority of mothers being the resident parent after separation. Many examples of fathers being denied contact by mothers are documented, and some of these will be discussed later in the essay. The main aim of this essay is to compare the current Children and Adoption Bill to previous legislation, and whether or not it manages to meet its objectives and address the issues that have caused controversy over the last 15 years. The researcher aims to show that whilst this new legislation does go some way to improving the previous situation and improving the chances of contact between children and non-resident parents, it still lacks gender specific policies to deal with the socio-cultural bias towards mothers in parental disputes over contact.
Comparisons with previous legislation
The original legislation put in place to deal with issues of parental separation and child contact were outlined in the 1989 Children Act. The major problems with this legislation were that it didn’t give enough powers to courts to enforce compliance of contact orders, and that contact was not generally promoted outside of the orders. This resulted in many orders being breached and lengthy delays in getting breached orders enforced. The powers open to the courts meant that many non-resident parents, usually fathers, were unable to see their children due to mothers denying access. Another problem is that the 1989 Act gave parental responsibility automatically to the mother if the parents were not married at the time of the child’s birth, and the father had to apply for responsibility if an agreement could not be reached with the mother. Basically, the rights of a non-married father were fairly limited under this bill. Also, there was a severe lack of monitoring in terms of compliance with the bill and the general contact situation. This left the door open for unfounded allegations by mothers against the fathers in order to stop or delay contact. Even those fathers that clearly established themselves as fit to have contact often found they were unable to obtain contact in the face of hostility from the resident parent. Even with court intervention, not much could often be done.
The options open to the court were to put the mother in prison, fine the mother, hand over residence to the father or do nothing. Prison and monetary sanctions were often not practical as they harmed the welfare of the child, and residence passing to the father was not always possible if their residence was unsuitable for the child. In many cases, a severely non-compliant mother would face no penalties for breaching the contact order, and so the father would be unable to see the child at all. Although it wasn’t always the case that the father lost out, even when he was able to get contact there were often large delays and extreme stress involved to do so, and the situation could change.
Examples of just how difficult it was for the courts to make decisions about contact under this legislation can be seen in the following two case examples.
1 Family Law Reform 1279 (2004). In S (A Child) (Contact : Promoting Relationship with Absent Parent). The appeals court looked at a father appeal against the dismissal of an application for direct contact with his daughter, aged six. There had been separation between parents five years previously, and voluntary arrangements that had worked in the beginning had since broken down. The child was reluctant to have contact, mainly due to the mother’s extreme reluctance to make any form of contact work, and there were unproven allegations of domestic violence by the mother against the father. The president of the FLR put the dilemma as follows:
“If a mother is truly recalcitrant, the court can commit to prison for contempt or fine the mother. Most mothers do not have enough money to pay a significant fine and this sanction is seldom used, particularly since she is the primary carer of the child. Equally the sanction of prison for mothers who refuse to allow contact is a heavy one and may well be a self-defeating one…At this stage also the court may have the evidence that the continuing efforts to persuade the mother to agree to contact are having a disproportionately adverse effect upon the child whose welfare is paramount and the court may find it necessary, however reluctantly, to stop trying to promote contact. That is a very sad situation but may be necessary for a short or for a longer time if the welfare of the child requires it”.
In this case, she granted the appeal to allow the parties to jointly instruct a consultant child psychiatrist to asses the family and the contact prospects. Although this is in some way positive, it doesn’t help the father see his child at all, and delays contact even further.
This next case of 1 FLR 1226 (2004) D (A Child) (Intractable Contact Dispute : Publicity) shows even further the problems that occur for fathers when the mother denies access. The mother had in this case had not allowed the father to see his daughter at all for 2.5 years, and it was clear this situation was not going to change. Munby J concluded that the father would have to abandon his contact application because the mother was clearly not going to change her mind, and there was very little the courts could do to change this situation. He said:
“There are no simple solutions. And it is idle to imagine that even the best system can overcome all problems. The bitter truth is that there will always be some contact cases so intractable that they will defeat even the best and most committed attempts of judges. But that is no reason for not taking steps — urgent steps — to improve the system as best we can”.
This was clearly a injustice, and many pressure groups have formed over the years to combat such issues and greatly improve the rights of fathers in these proceedings. This has come about due to such cases as well as the clear desire of modern fathers to be more involved in the lives and upbringing of their children (O’Brien & Shemilt, 2003).
Two of the main groups around today are Families Need Fathers and Fathers For Justice (see websites www.fnf.org.uk and www.fathers-4-justice.org/home/index.html). Families Need Fathers have tried to combat these issues by appealing for change, and are the largest such charity in the UK. Fathers For Justice are quite different in their approach, and have staged aggressive protests over recent years involving climbing up buildings dressed as superheroes and often getting arrested for their troubles. However, their controversial protests have divided the community on these issues, with many believing their actions show real passion whilst others believing their reckless behaviour does nothing for the cause and simply damages the reputations of other fathers (Kelly, 2006). Although these groups vary radically in their ways of tackling the issues, their existence clearly shows the desire for change.
The previously mentioned cases and increasing coverage in the media led to the 2002 review of policy in the 2002 report by the Children’s Act Sub-Committee to the Lord Chancellor entitled Making Contact Work. Many of the issues raised in cases and through the work of pressure groups came to the fore in this report, including the issues of giving courts more power, reducing delays, promoting contact and increasing monitoring facilities so that contact orders are maintained. This report set the foundation for the 2004 Green paper and the subsequent Children and Adoption Act in 2005. The benefits of this act will be looked at next.
Benefits of the Children and Adoption Act
The Children and Adoption Act (2005) has been seen as a possible breakthrough in the fight against inequality for non-resident parents, and a step towards better contact once separation has occurred. In general terms, the Act is an acknowledgement that previous laws were inadequate in terms of contact orders and rights for non-resident parents in the face of non-compliance from resident parents.
The first major benefit of this act is the new powers to promote contact through the use of contact direction activities. Previously, a non-compliant resident parent might feel that the non-resident parent is unfit or unsuitable to be allowed contact with the child or children. However, contact direction activities allow the resident parent to get reassurances that the non-resident parent is altering their behaviour and improving through various treatments and counselling. This can help promote contact and allow the parties involved to work towards an amicable solution.
If this does not work, then the consequences of breaching the contact order are far clearer than they were before. Although non-compliant resident parents generally knew the consequences previously, they were not as firm as they are now or as enforceable.
The new laws regarding punishment for breach are also a big improvement on the previous penalties of fines and imprisonment. The unpaid work punishment via an enforcement order is much more workable, and provides real consequences for the non-compliant parent as well as reducing the harm to the child. The further punishment of compensation is also better than a fine, as this money still stays within the parent unit and the financial situation and welfare of the child are taken into account.
However, perhaps the most important benefit associated with this new bill is the increased monitoring facilities on offer, allowing for quicker decisions and a reduction in delays for non-resident parents. Through monitoring by CAFCASS and court officials, evidence regarding allegations made against parents can be quickly obtained and the status of compliance with the contact order can also be monitored. This acts as a deterrent against making unfounded allegations and breaching the contact order, and also allows for speedy reestablishment of contact should the order be broken.
Overall, the Children and Adoption Act (2005) represents a definite improvement on previous legislation. Despite this, there are still many issues that are not resolved, especially in terms of gender bias. The next section will deal with these specific issues and how they relate to the new bill.
Gender Issues Not Dealt With
Although the bill is seen as an improvement on the 1989 legislation, it has still come in for much criticism for not dealing with the gender issues that are at the heart of debate on contact law. The new Children and Adoption Act does make it easier for contact laws to be enforced, but shies away from issues of gender bias that have been the major cause for concern for many people. The law still fails to deal with the major issue of gender bias towards mothers due to the large percentage of mothers who are the resident parents after separation, and the general socio-cultural bias in favour of the importance of mothers for children. It has also been noted by the aforementioned pressure groups that mothers often obstruct or at the very least fail to encourage contact for the non-resident father.
It is believed that a more adequate solution to the problem would be to give an automatic 50:50 division to parents, thereby eliminating gender bias altogether. Although this is a very good idea in principle, in practical terms it is unlikely to work because of the possibly unsuitability of one parent in such situations, and so a 50:50 split might not be in the best interests of the children involved.
Although it is generally accepted that the bias is still towards mothers, there is some evidence to suggest that the gender bias goes both ways, and is more a bias towards the non-resident parent than a gender specific issue. In Kielty (2005), the views a small sample of non-resident mothers in the UK, who now number over 130,000, are taken into account. It shows that although many of the non-resident mothers have a good relationship with their children and still have contact, that some are denied access due to the reluctance of the resident father to allow contact. In these cases, it has been no easier for the mothers to gain access than it has for the typical non-resident fathers.
This study further shows how the Children and Adoption Act fails to deal with all aspects of the gender bias in contact cases, and due to the much higher number of non-resident fathers than non-resident mothers, the legislation can be seen as much more favourable to mothers than it is to fathers.
One thing that was also made clear in the Kielty (2006) study and Sobolewski and King (2005) study is that these gender bias issues can be overcome, but only if the parents have a good relationship and are willing to work together. In the Kielty (2006) study, the mothers who generally had contact with their children were the ones who had voluntarily become the non-resident parent, and had a good level of cooperation with their ex-partners. The same was true in the Sobolewski and King (2005) study, where it found that high levels of parental cooperation allowed for increased levels of contact and less of a need for court proceedings. However, the study also found that cooperation after separation was fairly uncommon, with 66% of mothers saying the father of their child had no influence on the child’s upbringing.
It is clear that more needs to be done than the current legislation allows for, and although the objectives of giving more power to the courts, reducing delays and improving monitoring have been met, the issues of gender bias and cooperation still need much work.
The findings of this essay will now be concluded, and there will also be a look at what the future holds for parental contact legislation.
It is clear that the problems of the 1989 Children Act seen in various case examples, and the continued campaigning and media coverage of pressure groups have helped to shape the Children and Adoption Act of 2005. In many ways, this bill is a huge step forward in the fight to establish equality of contact with children for resident and non-resident parents after separation. There is a great improvement in the powers of the court to enforce the contact orders, and much more workable punishments for breaches. Also, monitoring has been improved with the cooperation of CAFCASS and so delays in getting contact orders and allegations analysed are being reduced. Also, the ability to promote contact through contact direction activities is a definite step in the right direction. It can be said that the three main objectives of increasing court powers, improving promotion of contact and improve contact order monitoring have all been achieved.
However, there are still some major issues that have not been dealt with, namely the gender bias still in place against fathers. With so many more non-resident fathers than non-resident mothers, and the increased likelihood of mothers to deny access to fathers, the legislation still does not give fathers the equal rights to see their children that they deserve.
In a bid to address this, the government is now trying to focus on improving cooperation between separated parents so as to ease conflict and reduce the problems of bias in the legislation. One way that this is being done is through pilot family resolution projects (Samuel, 2006). These pilot schemes have had a fairly low turnout, but have shown that agreements can be reached through an improvement in mutual parent understanding and cooperation. However, there is still a long way to go to make this scheme workable, and so far results are not much better than for in-court conciliation.
The gender bias issue definitely needs to be dealt with through future legislation or more effective means of improving cooperation between parents. Also, the involvement of the children in this process is key, especially those older children. Their needs and opinions should be of paramount importance when deciding the outcome of contact disputes. The current legislation is definitely an improvement, but there is still much to be done if fathers are to have the same rights of contact as mothers after parental separation.
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