Select Committee on Draft Children (Contact) and Adoption Bill First Report

CHAPTER 3: Facilitating and monitoring contact (clause 2)

67.  Clause 2 of the draft Bill would insert new section 11F into the Children Act 1989. Under new section 11F, if a court had made a contact order, or an order varying a contact order, it could ask a CAFCASS officer or a Welsh family proceedings officer to carry out a number of functions in order to facilitate and monitor contact, for a maximum period of 12 months. Section 11F(5) provides that those functions are:

(a)  facilitating compliance with the order;

(b)  monitoring whether the parties to the proceedings comply with the order;

(c)  reporting to the court on such matters relating to the parties' compliance as the court may specify in the order.

68.  The court could also specify in the order that a party to the proceedings must take steps to enable the officer to comply with his functions.[53]


69.  The Children and Family Court Advisory and Support Service (CAFCASS) was established in April 2001. Their current role includes giving advice to the court about any application made to it in family proceedings and providing information, advice and support for children and their families.

70.  The central role of CAFCASS (and Welsh family proceedings officers) in the draft Bill arises from the proposal in the Government's Green Paper that CAFCASS should move towards a "more active problem solving approach".[54] Dame Elizabeth Butler-Sloss agreed that changing the role of CAFCASS was crucial to the implementation of the draft Bill:

"If the government wants to get difficult contact cases out of the court system, one of the major agents of reform must be CAFCASS… it will be CAFCASS which works with the subject children and the family to broker agreements and address the issues which arise. CAFCASS must be permitted to play a greater role than is envisaged in the Bill."[55]

71.  The Parental Separation Green Paper acknowledged that in order to play a more active problem solving role, CAFCASS would have to change the way it operated. The Government and CAFCASS have stated that the change could be achieved if the judiciary reduced substantially the frequency with which CAFCASS was commissioned to write reports about family cases for the courts.[56] The judiciary, however, considered that it was the level of funding that was crucial to CAFCASS fulfilling its envisaged role. Dame Elizabeth Butler-Sloss stated:

"I find it quite extraordinary that in such a critical area as the protection of children from the damaging effects of disputes between their parents CAFCASS is denied the resources which would enable it to take on the expanded role which is so necessary."[57]

72.  We examine the issue of resources in detail in Chapter 8. In this Chapter we simply note the importance of ensuring that CAFCASS is appropriately resourced and organised to take on the new roles, including the facilitation and monitoring of contact, envisaged for it under the draft Bill.

73.  Placing a greater emphasis on mediation will require CAFCASS to adopt new ways of working. While court reports will still be necessary we anticipate that they will become part of the problem-solving and mediation process.

Family Assistance Orders (FAOs)

74.  Section 16 of the Children Act 1989 makes provision for Family Assistance Orders (FAOs). A court may make such an order in respect of a child requiring a local authority, CAFCASS or Welsh family proceedings officer to advise, assist and, where appropriate, befriend a person named in the order. Although generally viewed as a helpful facility, the use of FAOs has been limited.[58] Dame Elizabeth Butler-Sloss explained that there were four main difficulties with the orders and the way that they were administered:

  • "The FAO lasts only for 6 months. It is unrealistic to expect that the problems which have led to the making of an FAO can be resolved within this short timeframe.
  • Every party has to agree to the order being made. If one party does not agree to the order, for whatever reason, and whether or not justified, the order cannot be made.
  • The FAO is generally allocated to Local Authorities, many of which do not give the orders sufficient priority, and in some cases may refuse to implement them.
  • The Home Office has not allocated adequate funding to administer the scheme."[59]

75.  A further limitation on the use of FAOs is imposed by the requirement in section 16(3) of the Children Act 1989 that the court must be "satisfied that the circumstances of the case are exceptional" before it can make the order.

76.  The Green Paper recognised that FAOs were a "further means of facilitating contact" and that they required reform. The Green Paper stated that "it may be helpful to remove the current requirement that the orders may only be made in exceptional circumstances or for there to be more flexibility about their duration".[60] The Government proposed to "legislate, as needed, to revise the arrangements for the use of FAOs".[61]

77.  The draft Bill, however, makes no mention of FAOs. Several witnesses, including the National Youth Advisory Service (NYAS), argued that it should:

"We are puzzled by the lack of procedural links with other relevant pieces of legislation… it would appear that an important legislative opportunity to strengthen the statutory provisions of s.16 Children Act 1989 Family Assistance Orders to support families in conflict has been missed."[62]

78.  The Committee considers that, while the focus of much of the draft Bill is on developing effective sanctions that can be employed when one or other parent flouts the court's order, genuine progress in cases involving embattled parents is likely to require sustained engagement in order to address the underlying causes of resistance and, in some instances, to educate parents in a better appreciation of their children's needs. Sanctions may on occasion be necessary, but they are not the only way of achieving behaviour change.

79.  We recommend, in respect of Family Assistance Orders, that the full Bill should:

(i)  remove the requirement for there to be 'exceptional circumstances';

(ii)  remove the need to obtain the consent of all those who are to be named in the order;

(iii)  permit an order to be made for up to 12 months in the first instance (in line with the facilitation and monitoring provisions of clause 2), and to be renewed for an unlimited period of time if necessary; and

(iv)  require that FAOs should be operated by CAFCASS, or a Welsh family proceedings officer, which is equipped to carry out such work, and not local authorities.

53   New section 11(9) Back

54   Parental Separation: Children's Needs and Parent's Responsibilities, para 73 Back

55   Ev 10 Back

56   Cm 6273, para 73. See also Q 119 [Baroness Pitkeathley].  Back

57   Ev 10 Back

58   See, for instance, Ev 58, para 10. Back

59   Ev 10. See also Ev 72. Back

60   Cm 6273, para 81 Back

61   Cm 6273, para 81 Back

62   Ev 186, section 5. See also Q182 [Mr Harris], Q78 [Mrs Justice Bracewell] and Q4 [Mr Kirk] and Ev 103, para 4. Back

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