Children and Adoption Act 2006 news (for 8th December 2008) On 1 July 2008, the Government announced its plan to implement, in Autumn 2008, the remaining provisions in Part 1 of the Children and Adoption Act 2006 giving new powers to the courts to order 'contact activities' and new enforcement powers in private law proceedings. These are finally coming into force on 8th December 2008. x Measures to Assist A] The use of family assistance orders with a Court Welfare Officer assisting with contact. (see Section 6(3) of the Act). B] The Court can direct that a Court Welfare Officer monitors contact (see section 2(2) of the act) for up to 12 months (see section 2(6) of the Act). C] The Court can require an individual who is a party to contact (e.g. the resident or non-resident parent or others named on the order) to undertake counselling or guidance classes that may assist in maintaining, improving or establishing contact (see section 5(a) of the Act). Penalties D] When a Contact Order is made or varied, a Notice of Warning will now be attached setting out the consequences of failing to adhere to the order (see section 3 of the Act). E] The Court can fine the party responsible for the breach in the event that the other party has suffered financial loss as a result of the breach e.g. for cancelled holidays (see section 5 of the Act). F] Where it is proven beyond reasonable doubt that a person has failed to comply with the terms of a Contact Order, the Court can make an 'enforcement order' requiring that the person undertake unpaid work e.g. community service (see section 4(2) of the Act). The Court will not make an enforcement order or compensation order if the person in breach of the Contact Order has a 'reasonable' excuse for the breach having occurred. The person in breach of the Contact Order bears the responsibility for proving they have such an reasonable excuse (see section 4(4) of the Act). The Children and Adoption Act 2006, when fully implemented, makes provision for courts to improve arrangements to facilitate contact and enforce contact orders for those who go to court for help with a decision on contact arrangements with the child. It will enable the court to direct people involved in a contact case to attend ‘contact activities’, such as a parenting programme or an information session about mediation, that assist to establish, maintain or improve contact. The court will also be able to ask a Cafcass or a Welsh Family Proceedings Officer to monitor contact orders and/or compliance with a ‘contact activity’ and report to the court if necessary. Where a contact order has been breached without reasonable excuse, there will be provisions to enforce contact orders by enabling the courts to impose an unpaid work requirement on the person in breach of the contact order. Courts may also award financial compensation from one person to another, for example, when the cost of a holiday has been lost. Children and Adoption Act 2006 – Enforcement Orders If other means of establishing contact, such as contact activity directions and conditions have been unsuccessful, the Children and Adoption Act 2006 provides for the imposition of an enforcement order on a party who is in breach of a contact order. This order will require a person to undertake between 40 and 200 hours unpaid work. Unpaid work is a community sentence available to criminal courts, which was formally known as community service. The National Offender Management Service (NOMS) will be responsible for arranging unpaid work as a requirement of an enforcement order. A person subject to an enforcement order will be supervised by a responsible officer employed by a probation area, whilst undertaking their unpaid work hours. The responsible officer will report on the unpaid work requirement to Cafcass or CAFCASS CYMRU. Cafcass and CAFCASS CYMRU will then inform the court and other parties in the proceedings if a person fails to attend for unpaid work, or becomes unable to complete their unpaid work hours. Enforcement orders are intended to deter people from breaching contact orders. However, they are not simply a punitive, but are intended to facilitate contact. It is possible for the order to be revoked at an early stage if satisfactory contact is established. It is also possible for enforcement orders to be suspended, in order to encourage compliance with contact orders. Discussions have taken place between Cafcass, CAFCASS CYMRU and NOMS to determine how enforcement orders will be managed, although it is not anticipated that any orders will be imposed before Spring 2009. This is because courts will consider other options to facilitate contact, before resorting to an enforcement order. Briefing materials on unpaid work for Cafcass and CAFCASS CYMRU staff has been prepared and information has been made available for probation areas in relation to the management of enforcement orders. x To read the Act in full, click on the link below: The Children and Adoption Act 2006 To read the explanatory notes to The Children and Adoption Act 2006, click on the link below: Explanatory Notes to Children and Adoption Act 2006 Part I of the Act relating to Family Assistance Orders and Risk Assessment is expected to come into force in late November 2008. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ President's Guidance on McKenzie Friends TCM Comment: McKenzie Friends are lay legal advisors who assist people who decide to represent themselves in court. There are a number of reasons why someone may wish to manage their own case with the assistance of a lay advisor, rather than use the services of a solicitor and barrister. The most common are: 1. They may not qualify for legal aid, may not be able to afford a solicitor, but still need advice. 2. They may feel that they can better present their own case, having a more detailed knowledge of it that a solicitor would. 3. They may have become disillusioned with the legal profession. Due to the increasing number of litigants (people going to court) who choose to act in person and with the assistance of a McKenzie Friend, in April 2008, the President of the Family Division of the Courts issued new guidance for the courts. Following the recent decision of Munby J in the case of Re N (A child) (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam), the President’s Guidance of 14th April 2008 required amendment to the penultimate paragraph headed “Rights of Audience”. The Guidance of 14th April was therefore withdrawn and reads as follows in its reissued form. October 2008 In the light of the growth of litigants in person in all levels of family court, the President issues this guidance, which supersedes that of 13th May 2005. [2005] Fam Law 405, and is to be regarded as a reminder that the attendance of a McKenzie friend will often be of advantage to the court in ensuring the litigant in person receives a fair hearing. · A litigant who is not legally represented has the right to have reasonable assistance from a layperson, sometimes called a McKenzie Friend (“MF”). This is the case even where the proceedings relate to a child and are being heard in private. · A litigant in person wishing to have the help of a MF should be allowed such help unless the judge is satisfied that fairness and the interests of justice do not so require. The presumption in favour of permitting a MF is a strong one. · A litigant in person intending to make a request for the assistance of a MF should be encouraged to make the application as soon as possible indicating who the MF will be. · It will be most helpful to the litigant in person and to the court if the particular MF is in a position to advise the litigant in person throughout the proceedings. · A favourable decision by the court, allowing the assistance of a MF, should be regarded as final and not as something which another party can ask the court to revisit later, save on the ground of misconduct by the MF or on the ground that the MF’s continuing presence will impede the efficient administration of justice. · When considering any request for the assistance of a MF, the Human Rights Act 1998 Sch 1 Part 1 Article 6 is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request. · The litigant in person should not be required to justify his desire to have a MF; in the event of objection, it is for the objecting party to rebut the presumption in favour of allowing the MF to attend. · Factors which should not outweigh the presumption in favour of allowing the assistance of a MF include § the fact that proceedings are confidential and that the court papers contain sensitive information relating to the family’s affairs § the fact that the litigant in person appears to be capable of conducting the case without the assistance of a MF § the fact that the litigant in person is unrepresented through choice § the fact that the objecting party is not represented § the fact that the hearing is a directions hearing or case management hearing § the fact that a proposed MF belongs to an organisation that promotes a particular cause · The proposed MF should not be excluded from the courtroom or chambers while the application for assistance is made, and the MF should ordinarily be allowed to assist the litigant in person to make the application. · The proposed MF should produce a short curriculum vitae or other statement setting out relevant experience and confirming that he/she has no interest in the case and understands the role of a MF and the duty of confidentiality. · If a court decides in the exercise of its discretion to refuse to allow a MF to assist the litigant in person, the reasons for the decision should be explained carefully and fully to both the litigant in person and the would-be MF. · The litigant may appeal that refusal, but the MF has no standing to do so. · The court may refuse to allow a MF to act or continue to act in that capacity where the judge forms the view that the assistance the MF has given, or may give, impedes the efficient administration of justice. However, the court should also consider whether a firm and unequivocal warning to the litigant and/or MF might suffice in the first instance. · Where permission has been given for a litigant in person to receive assistance from a MF in care proceedings, the court should consider the attendance of the MF at any Advocates’ Meetings directed by the court, and, with regard to cases commenced after 1.4.08, consider directions in accordance with paragraph 13.2 of the Practice Direction. Guide to Case Management in Public Law Proceedings. · The litigant in person is permitted to communicate any information, including filed evidence, relating to the proceedings to the MF for the purpose of obtaining advice or assistance in relation to the proceedings. · Legal representatives should ensure that documents are served on the litigant in person in good time to seek assistance regarding their content from the MF in advance of any hearing or advocates’ meeting. What a McKenzie Friend May Do · Provide moral support for the litigant · Take notes · Help with case papers · Quietly give advice on: § points of law or procedure; § issues that the litigant may wish to raise in court; § questions the litigant may wish to ask witnesses. What a McKenzie Friend May Not Do · A MF has no right to act on behalf of a litigant in person. It is the right of the litigant who wishes to do so to have the assistance of a MF. · A MF is not entitled to address the court, nor examine any witnesses. A MF who does so becomes an advocate and requires the grant of a right of audience. · A MF may not act as the agent of the litigant in relation to the proceedings nor manage the litigant’s case outside court, for example, by signing court documents. Rights of Audience and rights to conduct litigation · Sections 27 & 28 of the Courts and Legal Services Act 1990 govern exhaustively rights of audience and the right to conduct litigation. They provide the court with a discretionary power to grant lay individuals such rights. · A court may grant an unqualified person a right of audience in exceptional circumstances and after careful consideration. If the litigant in person wishes the MF to be granted a right of audience or the right to conduct the litigation, an application must be made at the start of the hearing. · Sections 27 and 28 of the Courts and Legal Services Act 1990 (the Act) respectively govern rights of audience and the right to conduct litigation. They provide the court with a discretionary power to grant unqualified persons, including MFs, such rights in relation to particular proceedings. · While the court should be slow to grant any application under s.27 or s.28 of the Act from a MF, it should be prepared to do so for good reason bearing in mind the general objective set out in section 17(1) and the general principle set out in section 17(3) of the Act and all the circumstances of the case. Such circumstances are likely to vary greatly: see paragraphs 40-42 of the judgment of Munby J. in Re N (A child) (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam). · If the litigant in person wishes the MF to be granted a right of audience or the right to conduct the litigation, an application must be made at the start of the hearing. Personal Support Unit & Citizens’ Advice Bureau · Litigants in person should also be aware of the services provided by local Personal Support Units and Citizens’ Advice Bureaux. The PSU at the Royal Courts of Justice in London can be contacted on 020 7947 7701, by email at cbps@bello.co.uk or at the enquiry desk. The CAB at the Royal Courts of Justice in London can be contacted on 020 7947 6564 or at the enquiry desk. President’s Guidance: McKenzie Friends ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- New Court Forms x At the same time as the Children and Adoption Act 2006 is implemented (anticipated 8th December 2008) there will be a new application form for Children Act 1989 Section 8 orders - C100. This is in order to capture information about mediation that may have taken place. The form will also be in a new format. The overall approach has been to provide specific spaces for answers to avoid the omission of data, for example, addresses, date of birth, etc. In addition, tick boxes have been inserted where possible to aid easy completion for the applicant, and assist identification of answers at court. There will also be some minor revisions to the C1 form (for all remaining Children Act 1989 applications) to accommodate the new C100 application. New stocks of each form will be provided and we will contact courts in due course to arrange this. x ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- New Anti Discrimination Laws The Gender Equality Duty - April 2007 A European Directive, 2004/113/EC, becomes law in April 2007 affecting England, Wales and Scotland. Called the Gender Equality Duty, all Public Sector Organisations in Great Britain must treat men and women equally, with this impacting on their policy making, the way their services are provided, and how they treat their staff and service users. Under the general duty, public sector organisations have a duty to eliminate discrimination and harassment and to promote equality. Certain organisations also have specific duties, but these help provide a structure to ensure that the organisations meet their general duty. How could this impact on separating or separated parents and their children? Currently, when a Council considers housing distribution, a non-resident father may be allocated a one bedroom house, without consideration being given to the fact he looks after his two children every weekend. Where parents have parental responsibility (possibly only being the biological parent), it is now arguable that the Local Education Authority should include both parents' contact details on the childrens files and provide both parents with the same information e.g. treat them equally. The decision on which parent receives the child benefit books could be challenged on the grounds of sexual discrimination. Who is responsible for ensuring that Public Sector Bodies adhere to their equality duties? The Equal Opportunities Commission (until October 2007), and from then you should contact the Commission for Equality and Human Rights. Who does the Gender Equality Rule apply to? All public sector authorities in Great Britain are required to adhere to the General Duty on equality. The most obvious are schools, universities, local authorities, general practitioners, hospitals, the police and the armed forces. Private sector bodies may also be required to adhere to the Duty if:
Additional factors which may be relevant in determining whether or not a body is carrying out a function of a public nature include:
Relevant Legislation, Guidance and Statutory Instruments x Gender Equality Duty - Draft Code of Practice - Great Britain - The Equal Opportunities Website The Equality Act 2006 and Statutory Instrument 2006 No. 1082 (C. 36 ) which bring the new equality code into force placing a duty on the Public Sector to promote equality. New Organisation promoting Equality In October 2007 the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission will be replaced by a single body called the Commission for Equality and Human Rights. New law preventing discrimination on the grounds of sexual orientation April 2007 will also see the introduction of The Equality Act (Sexual Orientation) Regulations 2007. |
Author's comment... Equality Act 2006 - Does it apply to the Courts? I had this question emailed to me. The answer is no. While virtually all public sector bodies must comply with the general duty not to discriminate, the courts are specifically excluded. Section 52 of the Equality Act 2006 Public authorities: general If you have experienced discrimination in from a judge due to your gender, or any other form on misconduct on their part, you can make a complaint to the Office for Judicial Complaints but under the Judicial Discipline (Prescriber Procedures) Regulations 2006. Full details are explained in our factsheet entitled Judicial Misconduct. |