Children and Adoption Bill [HL]

House of Commons

Session 2005 - 06
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Children and Adoption Bill [HL]

Children and Adoption Bill [HL]
Schedule 1 — Enforcement orders
Part 1 — Unpaid work requirement
19

Schedules
Schedule 1
Section 4

Enforcement orders

Before Schedule 1 to the Children Act 1989 (c. 41) insert—
“SCHEDULE A1
5
Enforcement orders
Part 1
Unpaid work requirement
General
1
Subject to the modifications in paragraphs 2 and 3, Chapter 4 of Part 12 of
10
the Criminal Justice Act 2003 has effect in relation to an enforcement order
as it has effect in relation to a community order (within the meaning of Part
12 of that Act).
References to an offender
2
Subject to paragraph 3, references in Chapter 4 of Part 12 of the Criminal
15
Justice Act 2003 to an offender are to be treated as including references to a
person subject to an enforcement order.
Specific modifications
3     (1)
The power of the Secretary of State by order under section 197(3) to amend
the definition of “responsible officer” and to make consequential
20
amendments includes power to make any amendments of this Part
(including further modifications of Chapter 4 of Part 12 of the Criminal
Justice Act 2003) that appear to the Secretary of State to be necessary or
expedient in consequence of any amendment made by virtue of section
197(3)(a) or (b).
25
      (2)
In section 198 (duties of responsible officer)—
(a)
in subsection (1)—
(i)
at the end of paragraph (a) insert “and”, and
(ii)
omit paragraph (c) and the word “and” immediately
preceding it, and
30
(b)
after subsection (1) insert—
“(1A)
Subsection (1B) applies where—

Children and Adoption Bill [HL]
Schedule 1 — Enforcement orders
Part 1 — Unpaid work requirement
20

(a)
an enforcement order is in force, and
(b)
an officer of the Children and Family Court Advisory
and Support Service or a Welsh family proceedings
officer (as defined in section 35 of the Children Act
2004) is required under section 11M of the Children
5
Act 1989 to report on matters relating to the order.
(1B)
The officer of the Service or the Welsh family proceedings
officer may request the responsible officer to report to him on
such matters relating to the order as he may require for the
purpose of making a report under section 11M(1)(c) or (d);
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and it shall be the duty of the responsible officer to comply
with such a request.”
      (3)
In section 199 (unpaid work requirement)—
(a)
in subsection (2) (minimum and maximum hours of unpaid work)
for paragraph (b) substitute—
15
“(b)
not more than 200.”,
(b)
omit subsections (3) and (4), and
(c)
in subsection (5) for the words from the beginning to “of them”
substitute “Where on the same occasion and in relation to the same
person the court makes more than one enforcement order imposing
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an unpaid work requirement”.
      (4)
In section 200 (obligations of person subject to unpaid work requirement),
for subsection (2) substitute—
“(2)
Subject to paragraphs 7 and 9 of Schedule A1 to the Children Act
1989, the work required to be performed under an unpaid work
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requirement imposed by an enforcement order must be performed
during a period of twelve months.
(2A)
But the period of twelve months is not to run while the enforcement
order is suspended under section 11J(9) of the Children Act 1989.”
      (5)
Section 217 (requirement to avoid conflict with religious beliefs, etc) is
30
omitted.
      (6)
In section 218 (availability of arrangements in local area), subsection (1)
(condition for imposition of unpaid work requirement) is omitted.
      (7)
Section 219 (provision of copies of relevant order) is omitted.
      (8)
The power of the Secretary of State to make rules under section 222 in
35
relation to persons subject to relevant orders may also be exercised in
relation to persons subject to enforcement orders.
      (9)
The power of the Secretary of State by order under section 223(1) to amend
the provision mentioned in section 223(1)(a) includes power to amend this
Part so as to make such modifications of Chapter 4 of Part 12 of the Criminal
40
Justice Act 2003 as appear to the Secretary of State to be necessary or
expedient in consequence of any amendment of the provision mentioned in
section 223(1)(a).

Children and Adoption Bill [HL]
Schedule 1 — Enforcement orders
Part 2 — Revocation, amendment or breach of enforcement order
21

Part 2
Revocation, amendment or breach of enforcement order
Power to revoke
4     (1)
This paragraph applies where a court has made an enforcement order in
respect of a person’s failure to comply with a contact order and the
5
enforcement order is in force.
      (2)
The court may revoke the enforcement order if it appears to the court that—
(a)
in all the circumstances no enforcement order should have been
made,
(b)
having regard to circumstances which have arisen since the
10
enforcement order was made, it would be appropriate for the
enforcement order to be revoked, or
(c)
having regard to the person’s satisfactory compliance with the
contact order or any contact order that has effect in its place, it would
be appropriate for the enforcement order to be revoked.
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      (3)
The enforcement order may be revoked by the court under sub-paragraph
(2) of its own motion or on an application by the person subject to the
enforcement order.
      (4)
In deciding whether to revoke the enforcement order under sub-paragraph
(2)(b), the court is to take into account—
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(a)
the extent to which the person subject to the enforcement order has
complied with it, and
(b)
the likelihood that the person will comply with the contact order or
any contact order that has effect in its place in the absence of an
enforcement order.
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      (5)
In deciding whether to revoke the enforcement order under sub-paragraph
(2)(c), the court is to take into account the likelihood that the person will
comply with the contact order or any contact order that has effect in its place
in the absence of an enforcement order.
Amendment by reason of change of residence
30
5     (1)
This paragraph applies where a court has made an enforcement order in
respect of a person’s failure to comply with a contact order and the
enforcement order is in force.
      (2)
If the court is satisfied that the person has changed, or proposes to change,
his residence from the local justice area specified in the order to another local
35
justice area, the court may amend the order by substituting the other area for
the area specified.
      (3)
The enforcement order may be amended by the court under sub-paragraph
(2) of its own motion or on an application by the person subject to the
enforcement order.
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Children and Adoption Bill [HL]
Schedule 1 — Enforcement orders
Part 2 — Revocation, amendment or breach of enforcement order
22

Amendment of hours specified under unpaid work requirement
6     (1)
This paragraph applies where a court has made an enforcement order in
respect of a person’s failure to comply with a contact order and the
enforcement order is in force.
      (2)
If it appears to the court that, having regard to circumstances that have
5
arisen since the enforcement order was made, it would be appropriate to do
so, the court may reduce the number of hours specified in the order (but not
below the minimum specified in section 199(2)(a) of the Criminal Justice Act
2003).
      (3)
In amending the enforcement order under sub-paragraph (2), the court must
10
be satisfied that the effect on the person of the enforcement order as
proposed to be amended is no more than is required to secure his
compliance with the contact order or any contact order that has effect in its
place.
      (4)
The enforcement order may be amended by the court under sub-paragraph
15
(2) of its own motion or on an application by the person subject to the
enforcement order.
Amendment to extend unpaid work requirement
7     (1)
This paragraph applies where a court has made an enforcement order in
respect of a person’s failure to comply with a contact order and the
20
enforcement order is in force.
      (2)
If it appears to the court that, having regard to circumstances that have
arisen since the enforcement order was made, it would be appropriate to do
so, the court may, in relation to the order, extend the period of twelve
months specified in section 200(2) of the Criminal Justice Act 2003 (as
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substituted by paragraph 3).
      (3)
The period may be extended by the court under sub-paragraph (2) of its own
motion or on an application by the person subject to the enforcement order.
Warning and report following breach
8     (1)
This paragraph applies where a court has made an enforcement order in
30
respect of a person’s failure to comply with a contact order.
      (2)
If the responsible officer is of the opinion that the person has failed without
reasonable excuse to comply with the unpaid work requirement imposed by
the enforcement order, the officer must give the person a warning under this
paragraph unless—
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(a)
the person has within the previous twelve months been given a
warning under this paragraph in relation to a failure to comply with
the unpaid work requirement, or
(b)
the responsible officer reports the failure to the appropriate person.
      (3)
A warning under this paragraph must—
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(a)
describe the circumstances of the failure,
(b)
state that the failure is unacceptable, and
(c)
inform the person that, if within the next twelve months he again
fails to comply with the unpaid work requirement, the warning and
the subsequent failure will be reported to the appropriate person.
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Children and Adoption Bill [HL]
Schedule 1 — Enforcement orders
Part 2 — Revocation, amendment or breach of enforcement order
23

      (4)
The responsible officer must, as soon as practicable after the warning has
been given, record that fact.
      (5)
If—
(a)
the responsible officer has given a warning under this paragraph to
a person subject to an enforcement order, and
5
(b)
at any time within the twelve months beginning with the date on
which the warning was given, the responsible officer is of the
opinion that the person has since that date failed without reasonable
excuse to comply with the unpaid work requirement imposed by the
enforcement order,
10

the officer must report the failure to the appropriate person.
      (6)
A report under sub-paragraph (5) must include a report of the warning
given to the person subject to the enforcement order.
      (7)
The appropriate person, in relation to an enforcement order, is the officer of
the Service or the Welsh family proceedings officer who is required under
15
section 11M to report on matters relating to the enforcement order.
      (8)
“Responsible officer”, in relation to a person subject to an enforcement order,
has the same meaning as in section 197 of the Criminal Justice Act 2003 (as
modified by paragraph 2).
Breach of an enforcement order
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9     (1)
This paragraph applies where a court has made an enforcement order (“the
first order”) in respect of a person’s failure to comply with a contact order.
      (2)
If the court is satisfied beyond reasonable doubt that the person has failed to
comply with the unpaid work requirement imposed by the first order, the
court may—
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(a)
amend the first order so as to make the requirement more onerous, or
(b)
make an enforcement order (“the second order”) in relation to the
person and (if the first order is still in force) provide for the second
order to have effect either in addition to or in substitution for the first
order.
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      (3)
But the court may not exercise its powers under sub-paragraph (2) if it is
satisfied that the person had a reasonable excuse for failing to comply with
the unpaid work requirement imposed by the first order.
      (4)
The burden of proof as to the matter mentioned in sub-paragraph (3) lies on
the person claiming to have had a reasonable excuse, and the standard of
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proof is the balance of probabilities.
      (5)
The court may exercise its powers under sub-paragraph (2) in relation to the
first order only on the application of a person who would be able to apply
under section 11J for an enforcement order if the failure to comply with the
first order were a failure to comply with the contact order to which the first
40
order relates.
      (6)
Where the person proposing to apply to the court is the child with respect to
whom the contact order was made, subsections (6) and (7) of section 11J have
effect in relation to the application as they have effect in relation to an
application for an enforcement order.
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Children and Adoption Bill [HL]
Schedule 1 — Enforcement orders
Part 2 — Revocation, amendment or breach of enforcement order
24

      (7)
An application to the court to exercise its powers under sub-paragraph (2)
may only be made while the first order is in force.
      (8)
The court may not exercise its powers under sub-paragraph (2) in respect of
a failure by the person to comply with the unpaid work requirement
imposed by the first order unless it is satisfied that before the failure
5
occurred the person had been given (in accordance with rules of court) a
copy of, or otherwise informed of the terms of, a notice under section 11N
relating to the first order.
      (9)
In dealing with the person under sub-paragraph (2)(a), the court may—
(a)
increase the number of hours specified in the first order (but not
10
above the maximum specified in section 199(2)(b) of the Criminal
Justice Act 2003, as substituted by paragraph 3);
(b)
in relation to the order, extend the period of twelve months specified
in section 200(2) of the Criminal Justice Act 2003 (as substituted by
paragraph 3).
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     (10)
In exercising its powers under sub-paragraph (2), the court must be satisfied
that, taking into account the extent to which the person has complied with
the unpaid work requirement imposed by the first order, the effect on the
person of the proposed exercise of those powers—
(a)
is no more than is required to secure his compliance with the contact
20
order or any contact order that has effect in its place, and
(b)
is no more than is proportionate to the seriousness of his failures to
comply with the contact order and the first order.
     (11)
Where the court exercises its powers under sub-paragraph (2) by making an
enforcement order in relation to a person who has failed to comply with
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another enforcement order—
(a)
sections 11K(4), 11L(2) to (7), 11M and 11N have effect as regards the
making of the order in relation to the person as they have effect as
regards the making of an enforcement order in relation to a person
who has failed to comply with a contact order;
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(b)
this Part of this Schedule has effect in relation to the order so made
as if it were an enforcement order made in respect of the failure for
which the other order was made.
     (12)
Sub-paragraph (2) is without prejudice to section 63(3) of the Magistrates’
Courts Act 1980 as it applies in relation to enforcement orders.
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Provision relating to amendment of enforcement orders
10
Sections 11L(2) to (7) and 11M have effect in relation to the making of an
order under paragraph 6(2), 7(2) or 9(2)(a) amending an enforcement order
as they have effect in relation to the making of an enforcement order; and
references in sections 11L(2) to (7) and 11M to an enforcement order are to
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be read accordingly.”