Re T (A Child) [2009] EWCA Civ 20 Key points: Midweek parenting time was granted by the trial judge (there was an existing Shared Residence Order) as a resolution to and dismissal of the mother's application to relocate from London to Somerset. A Shared Residence Order is not an 'automatic bar' to relocation, but is an important consideration. There had been previous attempts to relocate internationally by the mother which had similarly been dismissed, whereupon the Shared Residence Order had been made.
W (Children) [2009] EWCA Civ 160 The mother intended moving to New Zealand, was on medication for depression and claimed she would be devastated if leave to remove was refused. The father's case was that his relationship with his children would all but cease if the mother's application was granted and there had previously been problems over contact. Key Points: The Judge doubted that contact would be supported by the mother, given the history; The need to move to New Zealand to find work was questioned; There was no medical evidence to support that the mother would experience anything other than disappointment if her application was refused. The application was refused, and the trial judge's decision was upheld by the court of appeal.
Watch out for the following:
RESIDENCE: Re L (Shared Residence Order) [2009] EWCA Civ 20 Key points: Shared Residence is an important factor, but not a 'trump card' preventing relocation. The mother's previous history of seeking to move away from the father meant the Judge was entitled to conclude that relocation was not in the child's best interests. In this case, both parents continued to play a substantial role in the child's life following separation. The father had mid-week and staying contact on alternate weekends. Journey times, were the mother to have moved, would have been three hours. The father opposed the move, arguing that it was intended to minimise his role in the child's life. Read the article in Family Law Week or in the Solicitor's Journal.
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. 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 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. 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.
At the same time as the Children and Adoption Act 2006 is implemented (anticipated for 8th December 2008) there will be a new application form for Children Act 1989 Section 8 orders - the Form 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 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 applications. x 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. Our experience is that reducing gender discrimination in the courts is not their priority. 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. |