Consultation
Launch Date 4 June 2008
Respond by 8 August 2008
Ref: Department for Children, Schools and Families
Children and Adoption Act 2006 - Children Act 1989
Contact Activity Directions and Conditions (Financial
Assistance) (England) Regulations 2008
*This consultation has now been extended until 8 August 2008. This
consultation seeks views on the proposed subsidy arrangements to support
individuals with the cost of contact activities directed or ordered by the courts.
This consultation will run for 8 weeks to allow for the implementation of the
regulations by December 2008.
Children and Adoption Act 2006 - Children Act 1989
Contact Activity Directions and Conditions (Financial
Assistance) (England) Regulations 2008
A Consultation
To
This is a public consultation so anyone can respond. A full list of
organisations that have been sent the consultation can be found
within the document.
Issued
4 June 2008
If your enquiry is related to the policy content of the consultation
Enquiries
you can contact Elizabeth Kay e-mail:
To
FinancialAssistance.CONSULTATION@dcsf.gsi.gov.uk
1
Executive Summary
1.1
We are seeking views on our proposals for the new subsidy arrangements
to support individuals taking part in contact activities directed or ordered by
the courts. These arrangements will be set out in regulations and we are
consulting on the principles of how the Children Act 1989 Contact Activity
Directions and Conditions (Financial Assistance) (England) Regulations
2008 (“the Regulations”) will work.
1.2
Part 1 of the Children and Adoption Act 2006 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 their children.
The courts will have more flexible powers to:
• direct parties in a contact case to attend a given “contact activity” such as
information meetings, parenting programmes/classes or other activities
designed to promote contact with the child concerned; and
• attach conditions to contact orders which may require attendance at a
given contact activity.
Where a contact order has been breached without reasonable excuse,
courts will be able (on an application) to:
• Impose community-based “enforcement orders” requiring a person to
undertake unpaid work and/or
• Award financial compensation from one party to another (for example
where the cost of a holiday has been lost).
1.3
The Government is firmly committed to improving the outcomes for children
and believes every child should have the opportunity to grow up in a secure
and loving family environment. The Government also believes that a child’s
best interests are usually met by both parents continuing to have a
meaningful relationship with, and responsibility for, the child after parental
separation, so long as it is safe to do so.
1.4
Where people are referred to contact activities designed to help establish,
maintain, improve or otherwise facilitate contact with a child, we expect the
cost of the activity to be met by the person in question. However, the
Government will subsidise payments for activities for those who are on low
incomes and are eligible for legal aid and those close to the threshold who
would experience hardship if they had to pay, by applying a simple sliding
scale. This will ensure that children are not disadvantaged by those
involved not being able to afford to pay for contact activities either directed
or ordered by the court.
1.5
Section 1 of the 2006 Act inserts new section 11F into the Children Act
1989 that gives the Secretary of State for Children, Schools and Families a
new regulation making power enabling him to make payments to assist
individuals in paying the charges or fees for contact activities that have
either been directed or ordered by the court.
1.6
We are seeking to develop an approach that is simple, non bureaucratic
and fair for subsidising those on low incomes and those that would
experience hardship if they had to pay. There are three key areas that
have been considered for the implementation of the subsidy. These are:
• Identifying those eligible for financial assistance
• Operating a sliding scale for those close to the threshold or those not
eligible but who might experience financial hardship if they had to pay
• Whether we should set a maximum level of assistance.
1.7
In summary we are proposing:
• to use the means testing element of the legal aid model to identify those
eligible for the full subsidy;
• that providers of contact activities operate a simple sliding scale to
determine the proportion of financial assistance an individual would be
eligible for, for those close to the threshold or who might experience
hardship if they had to pay; and
• not to set a maximum amount of assistance to avoid having to amend
regulations over time to accommodate rising costs.
1.8
We will be consulting for an eight week period and would welcome your
views on the questions in the consultation document. The consultation
ends 30 July 2008 and we expect to publish a response to the consultation
in October 2008.
2
Background
2.1
Parental separation affects many children and their families. Some three
million children will experience the separation of their parents during the
course of their childhood. We estimate that, each year, between, 150,000200,000 parental couples separate who have been married or cohabiting.
If separation is handled well, any adverse impact on their children may be
limited, in terms of both time and severity. Many children of separated
parents thrive and flourish. But when separation goes badly and in
particular, where children are drawn into parental conflict, then the effects
can be damaging for children. Evidence shows that children in this situation
can suffer poorer outcomes and reduced life-chances. They are more likely
to achieve less well at school, to truant or to run away from home. If,
however, parents are able to resolve their differences about parenting
issues these risks can be avoided.
2.2
The legal and court process can be slow and adversarial which can
contribute to a deterioration of the situation between separating couples.
The judiciary and others have pressed for wider, more flexible, ways to
facilitate and enforce compliance.
2.3
The proposals within the Children and Adoption Bill were part of a wider
programme of reform of the family justice system for private law cases.
That wider programme was set out in the Next Steps paper the White
Paper on Parental Separation: Children’s Needs and Parents’
Responsibilities on 18 January 2005.
2.4
The 2006 Act received Royal Assent on 21 June 2006 and Part 1 enacts
aspects of the White Paper Parental Separation: Children’s Needs and
Parents’ Responsibilities. The amendments made by Part 1 of the 2006 Act
to the 1989 Act will give the courts more flexible powers to facilitate child
contact and enforce contact orders made under the 1989 Act. New
facilitative measures inserted in the 1989 Act include giving courts the
power to require a party to a contact case to undertake a contact activity
such as attending relevant parenting programmes or classes, or
information sessions, before a contact order is made, varied or
discharged. The 1989 Act as amended will also provide the courts with the
power to attach conditions to contact orders, which may require a party to
undertake a contact activity and to require a Children and Family Court
Advisory Support Services (Cafcass) officer to monitor contact. The
provisions on contact activities give the courts an important new way to
help find solutions in contact cases where there is a serious conflict
between parties.
2.5
Legal basis for the financial assistance regulations
Section 1 of the 2006 Act inserts new section 11F ‘contact activity
directions and conditions: financial assistance’ into the 1989 Act. Section
11F (1) allows the Secretary of State to make regulations authorising him
to provide financial assistance to individuals falling within Section 11F(2).
2.6
An individual falls within section 11F(2) if he is required by a contact activity
direction or condition to take part in an activity that promotes contact with a
child, not being a child ordinarily resident in Wales.
2.7
Subsection (6) of section 11F sets out that regulations under that section
may provide that no assistance is available to an individual unless:
(a) the individual satisfies such conditions as regards his financial
resources as may be set out in the regulations;
(b) the activity in which the individual is required by a contact activity
direction or condition to take part is provided to him in England or Wales;
(c) where the activity in which the individual is required to take part is
provided to him in England, it is provided by a person who is for the time
being approved by the Secretary of State as a provider of activities
required by a contact activity direction or condition;
(d) where the activity in which the individual is required to take part is
provided to him in Wales, it is provided by a person who is for the time
being approved by the National Assembly for Wales as a provider of
activities required by a contact activity direction or condition.
2.8
Subsection (7) sets out that regulations under this section may make
provision:
(a) as to the maximum amount of assistance that may be paid to or in
respect of an individual as regards an activity in which he is required by a
contact activity direction or condition to take part;
(b) where the amount may vary according to an individual’s financial
resources, as to the method by which the amount is to be determined;
(c) authorising payments by way of assistance to be made directly to
persons providing activities required by a contact activity direction or
condition.
2.9
Application of the regulations
The Regulations will apply in relation to England only. The Welsh
Assembly Government will make regulations relating to children resident
in Wales and, subject to consultation, will be aligning their regulations with
those that will come into effect in England. Parallel alignment will ensure
that children and families in both England and Wales benefit from
equitable arrangements and no children are disadvantaged because of
where they live.
2.10
Enforcement
Enforcement is outside the scope of the regulations and will not form a
part of the Regulations. However, there will be appropriate systems in
place to deal with non compliance of the terms of a court direction or
order.
2.11
Cafcass
Cafcass’ role is to:
- safeguard and promote the welfare of children;
- give advice to the family courts;
- make provision for children to be represented; and
- provide information, advice and support to children and their families.
2.12
Cafcass will also, when requested by the court,:
• advise the court on what provision is available in the local area, before a
court directs a person to undertake a contact activity, or makes an order
imposing a condition that they do so, or makes an enforcement order;
• monitor and report to the court on any failure to comply with a contact
activity direction or condition;
• monitor, facilitate and report to the court on, compliance with a contact
order;
• monitor, and report to the court on, compliance with an enforcement
order.
3
The Proposals
3.1
We are consulting on the principles of how the Regulations will work and
we welcome your views. Overall, the 2006 Act makes provision to
improve arrangements to facilitate contact and enforce contact orders for
those who go to the courts for help with a decision on contact. The courts
will have more flexible powers to:
• direct parties in a contact case to attend information meetings, meetings
with a counsellor, parenting programmes/classes or other activities
designed to deal with contact disputes;
• attach conditions to contact orders which may require attendance at a
given class or programme;
• Ask Cafcass officers (or Welsh family proceedings officers in Wales) to
monitor and report to the court on any failure to comply with a contact
activity direction or condition; and
• Ask Cafcass officers (or Welsh family proceedings officers in Wales) to
monitor and report back to the court on compliance with a contact order.
Where a contact order has been breached, without reasonable excuse,
courts will be able to:
• Impose community-based “enforcement orders” for an unpaid work
requirement; or
• Award financial compensation from one party to another (for example
where the cost of a holiday has been lost).
3.2
We believe that a child’s best interests are usually met by both parents
continuing to have a meaningful relationship with, and responsibility for,
the child after parental separation, so long as it is safe to do so. Where
individuals are referred to contact activities to help improve contact with a
child, we expect the cost of the activity to be met by the person in
question. However, the new regulation making power enables the
Secretary of State to make payments to assist individuals in paying the
charges or fees for contact activities that have either been directed or
ordered by the court. The Government will subsidise payments for
activities for individuals to ensure that children are not disadvantaged by
individuals not being able to afford to pay for contact activities either
directed or ordered by the court.
3.3
We are proposing an approach that is simple, non bureaucratic and fair;
and where possible would use current administrative systems that are
already in place. There are three key areas that have been considered
for the implementation of the subsidy.
These are;
• Identifying those eligible for financial assistance
• Operating a sliding scale for those close to the threshold or those not
eligible but who might experience hardship if they had to pay
• Whether we want to set a maximum amount of assistance.
3.4
Cafcass
Cafcass will have a key role to play in the implementation arrangements
and facilitation of contact activities. Cafcass will act as an intermediary for
allocating funding to the provider and will be responsible for
commissioning provision. The contact activity provider would inform
Cafcass of those eligible for financial assistance in order that Cafcass can
allocate appropriate money to them, using funding provided by DCSF. All
payments for subsidised contact activity would be made direct to the
provider. Cafcass will also approve providers on behalf of the Secretary
of State and hold a list of approved providers that are suitable to deliver
contact activity provision. This would ensure that quality of provision is
maintained.
3.5
Identifying those eligible for financial assistance – means testing
We propose to use existing systems to identify those eligible for financial
assistance rather than set up a new layer of bureaucracy. There are two
models that currently use means testing that we have considered – legal
aid and court fees remission. The eligibility criteria for the two models are
at annex A. The table at annex B provides a comparative analysis of the
two models for means testing and, identifies advantages/disadvantages
and costs. In brief, this analysis shows that the means testing element of
the legal aid model compared with the court fee remission model, to be
simpler to administer with no additional administrative work necessary
and is already used extensively and understood by solicitors and the
Legal Services Commission (LSC). It applies to both applicants and
respondents and it is a fair system taking account of both disposable and
gross income. We therefore propose using the legal aid means test to
identify those eligible for financial assistance. Under these proposals,
those who are eligible for legal aid via the means testing element and are
able to provide proof, such as a legal aid certificate or a letter from a
solicitor, would be eligible for the full subsidy and would not have to pay
for the contact activity.
3.6
Sliding scale – those close to the threshold
There will be a very small number of individuals that are financially eligible
for legal aid but have not taken it up (currently estimated at around 2% of
those who were made an offer, around 50 individuals in 2006-07). In
addition, there are individuals whose numbers cannot be estimated, who
would be eligible for legal aid but who have not applied for it. In these
cases we are proposing that the provider carries out the means test to
check whether the individual is eligible for the subsidy.
3.7
There will also be a small number of individuals who are not eligible for
legal aid via the legal aid means test but are close to the threshold and
cannot readily afford to pay for the contact activity on hardship grounds.
For 2006-07 around 4.7% of applicants failed the means test (around
1000 individuals) either on income, capital or both but not all of these
would be close to the threshold. In these cases we are proposing that the
provider operates a simple sliding scale. Several providers already
operate a sliding scale arrangement for payment of services so have this
expertise and this would not be an additional burden for them. The onus
would be on the provider to inform Cafcass of these cases in order that
appropriate funding can be allocated to the provider. Annex C provides
an example of a simple sliding scale.
A flow chart setting out the whole process is at Annex D.
3.8
Maximum amount of assistance
The Secretary of State has the power to make provision in regulations as
to the maximum amount of assistance that may be paid in respect of an
individual taking part in a contact activity in accordance with a court
direction or a condition attached to a contact order. A maximum amount
may be difficult to determine as funding would be based on the type of
contact activity recommended which would be different for each individual
and on volumes taking up contact activities. We are, therefore, not
proposing to specify a maximum amount of assistance but instead to set
out in regulations that those eligible for financial assistance via the legal
aid means test would be eligible for a full subsidy and that those qualifying
for assistance on a sliding scale would only have to pay part of the
relevant charge or fee depending on their income.
3.9
Cost assumptions
We cannot be certain how often the courts will want to refer parties to
contact activities. However, all costs will be met from the Department for
Children, Schools and Families programme budget for contact services.
Estimates are based on the Bill Regulatory Impact Assessment (RIA) for
the Children and Adoption Bill assumptions on contact applications , and
the Cafcass national provider model (which contains costings for a mix of
different contact activities).
4
How To Respond
4.1
This consultation will run for 8 weeks, ending 30 July 2008.
You can respond on-line at:
www.dcsf.gov.uk/consultations
by email to: FinancialAssistance.CONSULTATION@dcsf.gsi.gov.uk
or in writing to:
Elizabeth Kay
DCSF
1st Floor Sanctuary Buildings
Great Smith Street
London
SW1P 3BT
5
Additional Copies
5.1
Additional copies are available electronically and can be downloaded from
the Department for Children, Schools and Families e-consultation website
at:
https://www.dcsf.gov.uk/consultations
6
Plans for making results public
6.1
We will publish the results of the consultation in October 2008 on the
DCSF consultation website. If you do not wish your response to be made
public please indicate so on your return.
Full list of organisations that have been sent this consultation
Association of Lawyers for Children, Association of District Judges, Bar
Council, Cafcass, CAFCASS Cymru, Childline, Children’s Society,
Council of HM Circuit Judges, Equal Parenting Coalition, Families Need
Fathers, Family Justice Council, Family Law Bar Association,
Grandparents’ Association, Institute of Legal Executives, Justices' Clerks’
Society, Law Society, Legal Services Commission, Magistrates’
Association, NCH Action for Children, National Council for One Parent
Families, National Family and Parenting Institute, Official Solicitor and
Public Trustee, Parentline Plus, Ministry of Justice, Senior Judiciary,
Resolution, Women’s Aid, LGA, Child Poverty Action Group, Association
of Directors of Children’s Services.