Cardiff Law School Study

FamilyLaw Week
By Charlotte Dyer, Sophie McCrum, Ruth Thomas,
Rachael Ward and Stephanie Wookey,

Cardiff Law School

Introduction
As part of Cardiff University’s Undergraduate Research Programme, we conducted a small study to discover legal professionals’ opinions on how to promote and enforce contact between children and non-resident parents. We have also surveyed the general public and we hope that data from both surveys will be used to form the basis of further research. The project was supervised by Professor Gillian Douglas and Dr Leanne Smith of Cardiff Law School.

We would like to take this opportunity to thank David Chaplin at Family Law Week for enabling subscribers to contribute to our research by completing our online questionnaires, and to thank all those who very kindly took the time to do so.

Background
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. Alternatively, in some cases, residence of the child may be transferred to the other parent.

There has been much dissatisfaction with the current law (see, for example, the report of the Children Act Sub-Committee of the Lord Chancellor’s Advisory Board on Family Law, Making Contact Work, 2002). There has been criticism of the use of imprisonment, branding it as a sanction which may be detrimental to the child’s welfare and thus running counter to the paramountcy principle. Another criticism of the sanctions is that they are rarely used and, therefore, ineffective.

As a result the Children and Adoption Act 2006 will amend 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. In addition, s110 introduces financial compensation for loss caused by the breach, such as the cost of a missed holiday.

Contact activity directions and conditions will also be introduced (ss. 11A-G) with the aim of facilitating contact. These include parenting classes and other specified activities such as counselling or anger management courses. Contact activity directions will be made only whilst a court is considering making a contact order. Conditions will be imposed where a final contact order is made.

Findings from the study
We obtained responses from 91 practitioners (54 solicitors, 26 barristers and 8 legal executives). One of our research aims was to discover whether legal professionals view the current range of available sanctions as adequate. Most of our respondents (84.3%) felt they were not. Seven respondents specifically stated that more sanctions were needed, whilst another seven felt that the current sanctions were too extreme. One participant commented that ‘imprisonment seems likely to simply stoke resentment, and can have a disproportionate impact on the imprisoned parent and the child’. Twenty-six respondents stated that sanctions were simply not used enough, with one commenting that enforcement was ‘an absolute joke’. Another solicitor stated that, in over twenty-seven years of experience, he/she had seen only two orders enforced.

In light of the new amendments being made to the law, we wanted to learn what professionals thought the aim of such sanctions should be, e.g. to support, punish or deter. The most popular response was to ‘deter’ breach. Next was to ‘support’ parents, to ensure meaningful contact as ‘their lives go on long after the court proceedings have ended’. This was followed by a substantial proportion stating that it was a mixture of ‘all three’ and that which was the most appropriate would depend on individual circumstances.

Interestingly, when asked whether the new sanctions would serve as adequate deterrents 46.4% responded in the negative. This may be linked to the view, noted above, that sanctions are rarely enforced, so that the threat of punishment is almost non-existent and the result is that resident parents ‘know this and therefore act accordingly.’

Despite this view, there was an almost equal split between those who thought that financial compensation will be an effective sanction and those who didn’t. Similarly, 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. Others felt they may reinforce an ‘adversarial attitude’.

With regard to financial compensation, most respondents (60.7%) 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’. Many agreed (52.8%) that unpaid work would not be practical for many parents due to, for example, childcare/employment commitments. As a result, it was felt probable that this measure will not commonly be utilised.

“Parents in Contact Disputes are Unlikely to be Able to Comply”

Graph: Parents in contact disputes are unlikely to be able to comply

We asked whether respondents thought that an interim stage of mediation might be beneficial before resorting to sanctions. A large majority (69.3%) felt that it would be. One theme that emerged from the comments was that mediation might better inform the parties on how to resolve their issues and help them to ‘work together to focus on a way forward’. However, many respondents who believed it would not be beneficial considered that the parents would just be too hostile to consider mediation and they ‘are usually past that stage when they enter a solicitor’s office.’ Others were concerned that it would just result in further delay which would not be in the best interests of the child.

When asked whether they thought that contact activity directions and conditions would fulfil their purpose of facilitating contact, the vast majority of professionals said that the only way that these provisions could work is if the parties were willing to abide by them, and make contact work. In cases where the parties are hostile towards one another and one or both parents are ‘determined to frustrate the situation,’ it was felt that the provisions are likely to have little effect.

One question that arose was how such activities should be funded. Forty per cent of professionals felt that they should be means-tested as this was the ‘‘fairest’ option. A significant proportion (38.3%) felt that it should be the responsibility of both parents since the children are the responsibility of both the parents. Far fewer felt that they should be fully funded by the State (13.6%) or solely by the non-resident parent (7.4%).

How Activities Named in Activity Directions/Conditions Should Be Funded

Graph: How activities named in activity directions/conditions should be funded

Conclusion
In conclusion, several problems have been highlighted with the current law, as well as with the new amendments. Sixty percent of the legal professionals who responded felt that the law does not strike the right balance between the interests of resident parents, non-resident parents and their children. The most common reason for this view was that the non-resident parent often gets ‘a raw deal’ in family proceedings. Others criticised the fact that resident parents can easily sabotage the process through, for example, causing delays. Several of our respondents were in favour of a presumption of shared residence.

As far as the new law is concerned, many respondents felt that financial constraints on the parents may simply prevent courts from imposing the new sanctions.

The overall message that emerged from our study was that, in the opinion of legal professionals, measures to enforce contact orders are likely to remain of limited value until the underlying problems relating to the promotion of contact are resolved.