Practice Points in Children Act proceedings

by Sarah Leigh

I aim here to provide a quick round up of three points of practice currently in focus:

  1. The implementation of Part 1 of the Children and Adoption Act 2006.
  2. The May 2008 practice direction residence and contact orders: domestic violence and harm.
  3. Family proceedings, court bundles and since Re X and Y [2009] 1 FCR 411 the risk of getting 

Named and shamed.

 On the 8th December 2008 part 1 of the Children and Adoption Act 2006 came into force. For many practitioners this was something of a stealth operation with the first awareness of the change being warning notices attached to new part 8 orders. All the sections of part 1 of the act are brought into force as amending insertions into the Children Act. The extension of the court’s powers in relation to  contact orders is expansive. At the same time new forms were introduced made necessary by the implementation of the Act. A new form C100 is required for S8 orders, for enforcement of a contact order a form C79 and a form C78 to attach a warning notice to an existing contact order. Behind the scenes of all applications things are happening. S16A provides that CAFCASS and CAFCASS Cymru have the following additional responsibilities, “if an officer is given cause to suspect that the child concerned is at risk of harm he must…. a.) make a risk assessment in relation to the child  b.) provide the risk assessment to the court.” These reports are prepared for the courts in a shortened time frame, they are brief reports to which the practitioners and parties are not privy.  Guidance has been sent by HMCS to court staff in the family departments to encourage the proper completion of the form C100. The form contains a number of new fields, requesting information on the applicant’s place of birth and previous surnames, the purpose of which is to make the safeguarding checks by CAFCASS and CAFCASS Cymru more effective with the police and local authorities. Other provisions are at S11A (1) to (6) and allow the court to make a contact activity direction. Examples of such activities are a parenting information programme or a domestic violence prevention programme. Those with public funding will get assistance, means testing is available but for those falling outside those limits the party will be expected to fund the activity themselves. CAFCASS will be responsible for supplying an approved list of providers. Whether this will be a financially viable direction in the current climate remains to be seen. Warning notices must be attached under S11I-S11N. Enforcement notices can be imposed requiring a person who fails to comply with a contact order to undertake unpaid work (40-200hrs), operated by the Probation service and CAFCASS. 

On the 8th of May 2008 Sir Mark Potter, president of the Family Division issued the practice direction cited above. In part to reinforce and develop the guidance set out in the Decision of Re L [2000] 2 FLR 334, now nine years old. The new practice direction is to be applied together with the private law family protocol. All family practitioners dealing with Children Act applications must be familiar with the practice direction which runs to 30 clauses. The purpose of the direction is to ensure the safety of both the children who are the subjects of applications and the children. A copy of the practice direction can be obtained from By implication all family practitioners will have to conduct a risk assessment when dealing with new clients. 

Re X and Y(bundles)(failure to comply with Practice Direction) [2009] 1FCR.  Munby J feeling a little peeved due to the late delivery and/or inadequate preparation of bundles, considered what sanctions may flow from a failure to comply with the current Practice Directions. These are cited at [2000] 1 FCR 521 and the effective update to that by the incumbent President of the Family Division Sir Mark Potter P at [2006] 2 FCR 834. His conclusion was compliance was more honoured in the breach than the observance. He noted that paragraph 12 of the latter citation warned of sanctions, he went on to say that there could be cost sanctions against the defaulting party or against the lawyers (wasted cost orders if cases had to be adjourned), being put to the back of the list and he then stated:

“In particularly egregious cases, defaulters may find themselves publicly identified in judgments delivered in open court.” So you have been warned and a gold star for all those who knew the meaning of egregious without the Oxford English to hand!

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