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Its a b*tch of a document (that’s local legal jargon) and I’m still digesting it piece by piece in between hearings and nappy changes – but I will be cooking up a summary of it for you. My preliminary observation is that it is convoluted, complicated and will probably benefit only the legal profession who will be instructed to deal with all the applications prompted as we all try to work out what it all means. And in a special election double whammy it contains a whole raft of future changes which will be brought in 18 months down the line – just at the moment that everyone has worked out what the law is. I can tell you that fat cats like me are rubbing our greasy little paws with glee. Or I would be if I didn’t have such a god awful headache from trying to unpick the unsightly mess that is the CSFA 2010.

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To experience the pain yourself first hand you may wish to visit the Office of Public Sector Information where you can view the Act alongside the explanatory notes, and also a helpful article in Family Law Week here (written when the Act was still a twinkle in the Queen’s eye (at Bill stage) but still helpful).

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The quote in The Times’ article from ‘a family judge’ seems to me to be a bit misleading – it seems to suggest that the new provisions are giving a ‘go directly to jail’ card to courts – but in fact the courts have the power to imprison already, and the new provisions are clearly intended to be a precursor to committal to prison, which is now only likely to be used if contact activities and community service orders have failed. And before the court makes an enforcement order it must not only be satisfied beyond reasonable doubt that there has been a breach of a contact order AND have dealt with any defence of ‘reasonable excuse’, but must ALSO first obtain a raft of information and satisfy itself that the order is really necessary and proportionate – they will not be made in every case of breach, in fact I venture to suggest these orders will be made very rarely and will probably make committals to prison even more infrequent because they provide and alternative sanction. 

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The other inaccuracy in the article is the suggestion that parents will be criminalised by the provisions – although the penalty of community service is drawn from the criminal law, a person subject to an enforcement order will NOT get a criminal record and their details will not be entered on the national offenders register - they will be punished for what is effect a contempt of court (although the orders are intended to be an ‘encouragement’ to compliance rather than punitive for the sake of punishment) but they will NOT be criminalised. What is absolutely right is the concern raised by Chris Goulden at Resolution about the funding of contact activities and the lack of clarity about who will provide them. I am trying to finalise the details of a seminar on this topic for Thursday and am still waiting for the promised publication on the DCSF website of the list of contact activity providers.

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One thing’s for sure – family practitioners need to refresh their memories about the long dormant contents of the 2006 Act, bone up on the rules that will apply and try to work out what is available in their area to make the new powers come to life.

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Based on my first read-through of the judgment this evening the decision appears to amount to this:

• the correct standard of proof in care proceedings is unequivocally the civil standard i.e. the balance of probabilities;
• the ‘cogency rule’ (that the more serious the allegation the more cogent the evidence needs to be) should be laid to rest;
• a finding of future harm cannot be founded upon a mere ‘real possibility’ of past harm – if there is insufficient evidence of past harm to satisfy the standard of proof the allegation remains no more than an unproven allegation and children should not be removed from their families on the basis of unproven allegations; .

I was struck particularly by Baroness Hale’s remarks about the distinctive roles of the court and local authorities (see pas 57-60 in particular): it is for local authorities to act on suspicions of harm by investigating and where appropriate initiating proceedings, but it is for the court to adjudicate upon the evidence and consider the child’s welfare based upon the conclusions reached about that evidence.

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I will want to read this judgment more thoroughly – there is a lot in it – but for now suffice to say that although it is lengthy it is also impressive, and has a good degree of clarity bearing in mind the difficult subject matter. I have linked above to the judgment on Family Law Week – no doubt a full summary of the case will appear there before I can hope to do it proper justice.

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Update: Laws of Love has helpfully provided a more detailed summary than I have found time to do: here.

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Since 2003 the inclusion of a father’s name on the birth certificate is effective to grant him parental responsibility, and his absence will mean that he must either obtain the mother’s consent or apply to the court for parental responsibility. Often of course the main reason that a mother has failed to name the father on the birth certificate is precisely because she does not want him to play a part in the child’s life, including through parental responsibility and so more often than not the father will have to take the more litigious route. 

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The flip side of the coin is that inclusion on the birth certificate also triggers financial responsibilities to pay child support.

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However under the new proposals there will apparently be an element of compulsion applied to both parents: upon the mother to identify the father and for the father to sign the register. This is likely to have several ramifications as far as I can tell (assuming the requirements to identify and to sign are complied with):

• the grant of parental responsibility will go hand in hand with the responsiility to maintain financially – either both will apply or neither.
• mothers who wish to obtain child support will be unable (theoretically) to avoid the grant of PR by leaving the certificate blank. .

It is unclear how these requirements will be enforced. If a mother is determined not to identify the father or a father is determined not to sign – will the threat of a fine really make a difference? And according to The Times a sole registration will take place where obtaining the fathers details would be ‘impossible, impractical or unreasonable’ – including cases of genuinely unknown fathers or cases of abuse (does this mean in cases of children who were conceived by rape or is it more wide?). That is all well and good but doesn’t this provide a gaping loophole through which any mother who wants to can skip, and that renders the whole reform a waste of time? 

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I wonder how all this will work in practice? A birth certificate is a pre-requisite to an application for child benefit so whilst the registrar is messing about trying to locate the errant father so that she can finally issue a birth certificate – the child benefit payments are delayed. Of course all these things can be ironed out no doubt but this is just one of several ways in which this is a dumber and more complicated idea than it perhaps first appears.  

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And even if it is successful in its own terms – labelling parents as such and giving them theoretical responsibilities, what this law reform plainly will not change is the inability of the child support system to get blood out of a stone, or the difficulties in transforming the tage ‘parental responsibility’ into the ability to play a meaningful part in a child’s life in cases of implacable hostility. An ‘end to fatherless children’ as touted in The Times? I don’t think that’s very likely.

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Forced Marriage Orders look set under the Act to be wide injunctive type orders which can be tailored to meet the needs of an individual case and which will be enforceable by way of imprisonment or fine. The terminology and framework used is in many respects borrowed from the original Part IV (for example the courtmust have regard to all the circumstances including the need to secure the health, safety and well-being of the person to be protected), but obviously new definitions are added (‘forced marriage’, ‘free and full consent’) which will have to be tested by caselaw. Applicants may include the victim her/himself, any other person with permission or any ‘relevant third person’ (as defined by the Secretary of State, and without the need for permission).

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The consultation concerns the relatively limited issue of who should be a ‘relevant third party’. Under the Act such a person or organisation will be allowed to make an application to the court for an order on behalf of the victim (prospective or actual) of a forced marriage, without first obtaining the permission of the court. I anticipate that social services departments are likely to be on the list, but I wonder how consistently or assiduously they are likely to make such applications where the victim is a young adult as opposed to a child. In cases involving children the local authority has clear statutory duties towards children in need or children who are at risk of significant harm, and although to some extent protection against forced marriage for a child could be obtained via s31 care proceedings no doubt these provisions will be helpful for local authorities in cases where young girls (and boys) disappear from school or where there are other markers of a possible abduction and / or forced marriage. Indeed the prospect of using these powers in the first instance as opposed to care proceedings may well be very attractive to a local authority wishing to avoid the exorbitant court fees of several thousand pounds which come into force under the new Public Law Outline as of April. The fee for this type of application looks likely to be set at a far lower figure, although I suppose it is likely that in due course someone will get wise to this and up the fee where a local authority is concerned. Outside the statutory framework of duties towards children, how often will Local Authorities consider it appropriate to intervene in this kind of case?

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Other ‘relevant third parties’ might include women’s groups, cultural groups or domestic violence support organisations. However, in reality these organisations are unlikely to have the knowhow or resources to properly pursue these applications and their ethos may be against making such applications where a woman or girl does not feel able to apply herself. It might be helpful instead to see some sort of system in place where such community organisations could refer to the Local Authority for them to fund and make an application.

The Act looks likely to provoke some interesting caselaw surrounding the legal definitions of forced marriage, consent, and the appropriate way to ascertain the true wishes and feelings of the victim and to weigh them into the balance when deciding whether to make an order.

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Interestingly, the Act (as is foreshadowed in the title) gives only the ‘old style’ enforcement powers that were applicable to breaches of non-molestation orders prior to the enactment of the Domestic Violence, Crime and Victims Act 2004 which made breaches of non-molestation orders a criminal offence with a maximum penalty of five years. I would have thought that logic dictated that a breach of a Forced Marriage Order under the same act ought also to be covered by the same provisions, but in fact those orders will only be punishable by way of contempt proceedings in the family courts (I had thought my days of traipsing to court with wig and gown to deal with Pt IV contempts were over but perhaps I’d better not burn the wig just yet). This seems very odd when, as acknowledged in the press release, forced marriage is viewed (rightly) as a form of domestic violence (which in individual cases may incorporate offences as serious as rape or child abduction) and where government policy is clearly to treat domestic violence seriously by pursuing criminal rather than civil remedies wherever possible. I don’t understand the logic of treating forced marriage differently, notwithstanding that of course the CPS can always prosecute for existing offences as appropriate as it always could (rape, assault, kidnapping etc).

The other complicating factor is that this reintroduces to the Family Law Act the notion of a power of arrest, the use of which had been greatly reduced by the Domestic Violence, Crime and Victims Act 2004 since all breaches of non-molestation orders were converted automatically to arrestable offences (although the power of arrest remains applicable to occupation orders).

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Based on recent experience I know that many police officers have not yet sussed out these changes in the law (viz one client who was told her ex could not be arrested for a breach of a non-molestation order because the judge had forgotten to attach a power of arrest, despite the clear warning on the order that a breach WAS arrestable without such power). It seems retrograde to reintroduce the power of arrest for this type of order – although both cases leave the discretion as to whether or not to arrest to the police officer in question, the clear intention behind the blanket provision to make all breaches arrestable is to encourage the police to arrest at the outset and leave the decision on prosecution to the CPS. I hope that local police forces will ensure that the relevant staff are adequately trained in the now quite complex provisions of Part IV Family Law Act 1996 before the new amendments come into force.

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I suppose one benefit of using old style arrest and contempt provisions for a breach of a Forced Marriage order is to ensure that the matter (and the breachor) are brought promptly before a court for an immediate rollicking and if necessary further swift action to ensure the safety of the victim.

POSTSCRIPT – the reason I think for the non-criminal nature of the provisions in this act is because the knowledge that criminal sanctions would apply to family members may be a strong deterrent for victims of forced marriage in pursuing their remedies. And of course for that reason there would often be huge evidential difficulties with prosecuting such matters where victims were unwilling to testify against family members.