Children’s contact with absent parent

The Family Court no longer make what used to be known as contact orders. Decisions as to time spent with a non-resident parent will be made by way of an all embracing child arrangements order.

A Child Arrangements Order will be made directed at the person with whom a child lives requiring them to allow the child to visit, stay or have other contact with the person specified in the Order. It is defined in section 8(1) of the Children Act 1989 as;

‘An order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other’

This definition is thus framed in positive terms whereby the court is imposing on the child’s carer a positive duty to facilitate whatever contact is specified.

The rights of the child

 

It is well established that contact with both parents is the right of a child. The courts have said that a child should not be deprived of contact with either parent unless the court is satisfied that it is in the interests of the child that contact should not take place. The Courts have further said that a decision depriving a child of contact with a parent is an order which the courts should be extremely slow to arrive at. Save in exceptional cases, to deprive the parent of contact was to deprive a child of an important contribution to the child’s emotional and material growing up in the long term. Thus a court should ask itself whether the fundamental emotional need of a child to have an enduring relationship with both parents was outweighed by any harm the child would be at risk of suffering if a contact order was made.

The law does not give a parent the right to have contact with his or her child. There is therefore no fundamental parental right of contact within the human rights or legal sense. It is the child who has a right to contact with both parents.

It is therefore quite wrong therefore to consider that the law provides a right for a parent to have contact with their child. To approach the court on the basis that it is your rights which are being breached and to demand that something is done about it is a sure route to failure. All rights are those of the child and it is the child’s right to contact with parents which the court will enforce.

Defining the types of contact

 

Direct Contact

This involves the child being together with the parent. This may be either visiting or staying.

Visiting Contact

This takes place at the address where the non-resident parent is living. This may be the former home or the new home where the parent is now living.

Staying Contact

This is contact in which the child stays overnight with the non-resident parent.

Interim Contact

Contact arrangements made on a temporary basis until the matter is settled at a full court hearing.

Defined Contact

Where the amount of contact is determined by the court

Reasonable Contact

This is where the parents agree between themselves the level of contact which is not defined by the court. This can often be an unstable arrangement due to differing views of what is ‘reasonable’. Such orders are only made when a level of agreement is possible between parents.

Supervised Contact

Contact may sometimes be supervised, for example through a contact centre. This will often be the case where a parent has drug or alcohol abuse problems, lacks a permanent home, or has demonstrated an inability to control his or her temper. It will often be at a contact centre, where volunteer (but not necessarily trained) staff are present (or nearby) during contact. The surroundings are often institutional and depressing – but it is always expected to be a temporary arrangement. Supervised contact can include contact at any place specified by the mother, supervised by herself or her relatives. 

Indirect Contact

Where no direct contact is permitted it is necessary to use other methods. Typically these include letters, postcards, gifts, telephone calls etc.

It has been held that where direct contact is not possible or practical at the present time, then a child should still grow up knowing of the love and interest of the absent parent with whom, in due course contact could be established.

The amount of direct contact and the timing will depend on the child’s age and the practical arrangements. Typical examples for contact with the parent with whom the child does not live could look as follows:

  • Baby: a couple of hours each Saturday morning,
  • Young toddler: a day each weekend: with very young children who have a short memory span. Frequent shorter contact is better than longer periods further apart
  • Young children: alternate weekends with one night overnight and maybe an evening each week
  • Older children: alternate weekends with overnight contact, maybe from Friday night to Sunday night; there could be additionally one night overnight contact a week; some parents agree Thursday nights, which would then provide a continuous long weekend every other weekend.
  • Teenagers often have sport or other weekend activities and contact must be planned around those. The court will not usually force a teenager over 14 to have contact with the other parent and at least from the age of about 12 the court takes the child’s wishes strongly into account.
  • In addition there would be holiday contact during school holidays, which would be shared, but would depend again on practical issues such as the parents’ working pattern and holidays they can take from work.
  • Arrangements for general and family holidays such as Christmas, other religious holidays (if they are important in the child’s life) and the birthdays of the child, the parents and siblings.

Contact orders or Child Arrangements Orders should always take into account the situation immediately beforehand. Depending on the previous situation the commencement of contact may vary considerably, for example if parents separate when a child is 12 months old and the father took paternity leave and was actively involved with nappy changing and other day-to-day and night-to-night care, there may already be overnight contact from the beginning. On the other hand if a father has not seen his children for five years and they are at primary school age, there would probably only be daytime contact for the first few months and overnight contact would be eased in slowly over a six-month period or so. It will always very much depend on the circumstances.

If the parents live further away from each other or even in different countries, the pattern would of course be quite different. In these cases contact is likely to be less frequent but longer. In addition telephone and internet video-phone contact (e.g. via MSN or Skype etc.) could form part of the arrangement or order. Often it can be surprisingly cheap to arrange contact in international cases if there is a budget airline flying between the two cities and dates are arranged well in advance.

It is always best to try to avoid court proceedings of course because the judge can only make an order. An order does not enforce itself and if someone does not comply with the order or takes a “work-to-rule” approach, matters can continue to be difficult. There will also be issues arising in the future where parents have to work together.

 

Considerations of the court

 

Section 1 of the Children Act 1989 provides that when a court determines any question with respect to the upbringing of a child, then the child’s welfare shall be the courts paramount consideration.

The consequence of this is that all other considerations are relevant only in so far as they cast light on what is in the best interests of the child. Thus unfortunate behaviour of one parent towards the other will not be relevant unless it shows behaviour which could affect the child.

A further consideration for the Court laid down in the Act is that the court must recognize that delay in determining a question concerning a child is likely to prejudice the welfare of the child.

In order therefore to minimise delay a court will usually draw up a timetable with a view to determining an application with the least possible delay and give such directions as appropriate for the purpose of ensuring that the timetable is adhered to. Unfortunately practicalities and a lack of funding may prevent the court from strictly following this principle. Sadly delay is common.

To avoid inevitable delay Mediation is an inexpensive way to find solutions outside the court system and it is particularly suitable to resolve issues about children.

 

The Welfare checklist

 

The court must comply with and have regard to the checklist in the Children Act1989 when considering making a Contact Order. This is commonly known as the Welfare Checklist and requires the court to take into consideration:

  • The ascertainable wishes and feelings of the child which must be considered in the light of the child’s age and understanding’.

A child’s stated wishes and the importance of what the child wants will depend upon the age and understanding of the child. If the child is 16 or over it is extremely unlikely that a court would make an order contrary to the child’s wishes. Enforcement would in any event be extremely difficult.

Under 16 years, the court will take the child’s view into account but not necessarily be bound by it. In the case of young children although their view will be noted, it is likely to be treated with caution. With 5, 6 and 7 year-olds their wishes as to having contact with an absent parent will carry little weight. If there is a suspicion that a child has been coached by a parent, then the stated wishes of that child will be completely ignored.  A parent who alienates a child against the other parent is likely to be condemned by the court and a residence order made in favour of the innocent parent.

  • The child’s physical, emotional and educational needs.

At one time the courts would give considerable weight to the consideration that young children should be brought up by their mother. This was based upon the natural bond between young children and their mother but any presumption has now been rejected by the court. This will still be a consideration but is not as decisive as at one time. The law can be taken as being that it is usual for very young children to be with their mothers, but where there is a dispute, this will be a consideration but not a presumption.

  • The likely effect on the child of any change in his or her circumstances. 

Where a child has had regular contact with a non-resident parent and there are now attempts to prevent this the court will not hesitate in making a contact order.

  • The child’s age, sex, and background and any characteristics of the child which the court considers relevant

Any harm which the child has suffered or is at risk of suffering.

  •  How capable each of the child’s parents is and any other person, in relation to whom the court considers the question to be relevant, is of meeting the child’s needs ‘.

This brings into relevance a parent’s conduct which is often an issue in contact order applications. . In Children Act cases the behaviour of a parent is only relevant in the way that it affects the child’s welfare. The behaviour of parents to each other may well be considered quite irrelevant.

Misconduct may however be relevant as throwing light on the probable behaviour of the parents in the future and might tip the scales where each parent has an equal claim. It is accepted by the courts that when marriages break down spouses can behave in a reprehensible way towards each other but this does not of itself necessarily exclude either spouse from being a good or adequate carer of a child.

 

Attitudes to contact between the child and the other parent can reveal whether a parent is genuinely concerned with the welfare of the child by allowing the other parent contact to the child or whether a parent is more interested in hurting the other parent by refusing contact, even though it is in the child interest to keep contact with the other parent. Thus where a father expressed himself as reluctant to allow the mother to have contact if he was given residence, this was taken by the court as a serious matter and weighed heavily against his application for a residence order.

 

The persons who can apply for a contact order

 

The following may apply to the court for a contact order without first seeking permission (or leave) from the court:

 

  • A parent (with or without parental responsibility)
  • A child’s legal guardian
  • A stepparent who has treated the child as ‘ a child of the family’
  • A person with whom the child has lived for at least three years
  • Any other person who has obtained the consent of all those with parental responsibility.

 

Persons who do not fall into any of these categories (often grandparents but also sometimes the child) will first have to first obtain permission from the court to make their application. The purpose of this is to act as a filter from applications that are not likely to succeed and which could cause unnecessary disruption to the child and his parents.

 

Application to a Family Court for an Order

 

The procedure for making an Application to the Family Court for a Child Arrangements Order is not particularly difficult and is intended not to be daunting for a person acting in person. Most probably the need to make the application has been forced upon you because you care for your children and do not want them to suffer following the breakdown of a relationship.   The Court will appreciate this.

Although of necessity there have to be rules and laid down procedures, the Court will not allow a person acting for themselves to be disadvantaged and you can expect to be helped by the Court to ensure that your application is considered fairly. Always remember however that you are asking the Court to decide not what you want for yourself but what will be best for your child.

The Court will always encourage you and the other parent to come to an agreement yourselves. Arrangements that have been agreed between the parties and not imposed by the Court are far more likely to work successfully and therefore be in the children’s best interest. You will be encouraged by the Court to make use of the mediation service provided by the court as an aid to agreeing the arrangements.

 

Very often simply issuing your application will result in the respondent taking matters seriously and coming to an arrangement with you. This will be encouraged by the Court and it is only where there is no prospect of agreeing the contact arrangements that the case will proceed to a full Hearing.

 

The pre-Action protocol

 

A Practice Direction applies when a person is considering applying for a contact or other relevant order in family proceedings. The purpose of the protocol is to encourage the parties to reach agreement themselves and to consider mediation as the way or resolving disputes over their children. There is a general acknowledgement that an adversarial court process is not always best-suited to the resolution of family disputes, particularly disputes between parents relating to children Such disputes are often best resolved through discussion and agreement.

 

To encourage a non-adversarial approach, all potential applicants for a contact order will be expected, before making their application, to have followed the steps set out in the Protocol. This requires a potential applicant except in certain specified circumstances, to consider with a mediator whether the dispute may be capable of being resolved through mediation.  If court proceedings are taken, the court will wish to know at the first hearing whether mediation has been considered by the parties. In considering the conduct of any of the parties, the court will take into account any failure to comply with the Protocol and may refer the parties to a meeting with a mediator before the proceedings continue further.

However nothing in the Protocol is to be taken as affecting the operation of the Law or the role of the court in any relevant family proceedings.

 

The protocol requires that before an applicant makes an application to the court for an order in relevant family proceedings, they contact a family mediator to arrange for the applicant to attend an information meeting about family mediation and other forms of alternative dispute resolution known as ‘a Mediation Information and Assessment Meeting’. There will however be exceptions to this where:

  • A mediator has determined that mediation is not appropriate
  • There has domestic violence resulting in a police investigation
  • The application is urgent by reason of danger to the applicant or a risk of significant risk to the child
  • A delay could result in unreasonable hardship to the applicant or irretrievable problems in dealing with the issues.
  • There is current social services involvement.
  • The applicant has contacted three mediators within 15 miles of the applicant’s home and none are able to conduct a Mediation Information and Assessment Meeting within 15 working days.

 

The mediator will contact the other party and invite you both to attend together at a Mediation Information and Assessment Meeting. Where necessary separate meetings may be held.

 

If you then make an application to the court in respect of the dispute you must file a completed Family Mediation Information and Assessment Form confirming attendance at a Mediation Information and Assessment Meeting or giving the reasons for not attending.

 

The Application Form

 

The prescribed form for making an application for a Contact Order is Form CI00.

It is not difficult to complete as for now you only need to give basic information. Should your application become contested; then the Court will require you to provide and file further evidence at a later date. The reason for this is so as not to inflame the situation and make early settlement more difficult.

Where your application is in respect of more than one child, all of the children should be included in the one application. If you are asking for more than one Order (such as Contact and Prohibited Steps or Residence) it is only necessary to use the one form.

 

Completing Form C100

 

It is essential to ensure that the application form is fully completed to prevent delays. Incomplete forms are likely to be returned by the Court office and may cause delays to proceedings and possibly unnecessary adjournments.

You can fill in the Form by hand or online. It matters not. Obviously it should be clear and legible and in black ink as it may end up being copied many times.  Remember that this is all about what is best for your child and not about how well you can fill in a form.

At least three copies of form C100 must be completed, signed and dated and then filed at the county court along with a completed FM1 mediation form.

A copy of the application will be sent to Cafcass upon issue of proceedings. The information contained in the form C100 will enable Cafcass to conduct enquiries prior to the first court hearing so that they cannot conduct their initial safeguarding checks and enquiries.

There will be a Court fee to pay unless you are entitled to a fee remission.

At a County Court the application will be considered by a District Judge of the Family Court or by specially trained magistrates usually sitting in the local Magistrates Court but away from any Court dealing with criminal matters

Usually a case will be heard in the Court for the district where the child lives and although it is not essential to issue in that court there will be the probability of a transfer with the delays that causes if the application becomes contested.

The court office will allocate a case number, fix a date time and place for a hearing or directions appointment and then return the application with the hearing date fixed and a response pack for completion by the Respondent to you for service.

It is your responsibility to serve a copy of the application sealed by the Court and notice of the Hearing date on the Respondent not less than 14 days before the date fixed for the hearing. Copies must also be served upon every person with parental responsibility and any other parties involved with the child or who has previously been involved in court proceedings concerning the child.

Send or give the papers to the Respondent. He or she then has 14 days to acknowledge receipt of the application to the Court, who will advise you of what they say and if they intend to oppose the Application.

Once an application has been made it can only be withdrawn with leave of the court.

The court will have fixed a Date for the first Hearing when both you and the Respondent will be required to attend. This has to be as soon as possible and the Court is required to actively manage the case to avoid delay.

Very often you will be telephoned by a court welfare officer before the hearing date to discuss mediation. You should give the possibility of this serious consideration. A CAFCASS officer will usually be present at Court when you arrive to encourage you and the Respondent to reach agreement. At most Courts you and the Respondent will have a meeting with the CAFCASS officer before going to see the Judge and at other Courts the Judge may see you both first and then adjourn for you to meet with the CAFCASS officer.

If agreement is possible it will usually then be a case of just going before the Judge (or Magistrates) with the CAFCASS Officer who will explain matters and what has been agreed. The Court can then be expected to make an Order in the agreed terms. There is however a ‘no order’ principle under the Children Act and it is possible that the Court will consider that where agreement has been reached there is no need for an Order.

If no agreement can be reached the Court will usually fix a further appointment, set a timetable and give further directions. If appropriate interim orders will be made and in most cases a CAFCASS report will be ordered. This will be a report by a CAFCASS officer who will visit and speak to everybody involved with the children and make recommendations to the Court. Unfortunately it can take at least 3 months for the preparation of the report.

Normal directions include statements being filed by all parties within a specified time limit.

Once the CAFCASS report has been prepared a further Directions appointment will be fixed for a further chance to agree matters based on the report recommendation. If one party does not accept the recommendation the case will be set down for a final Hearing before a Circuit Judge. If there is a dispute over the facts and allegations made a ‘fact finding hearing’ may be fixed to determine these issues before your contact application is heard.

The parties must file bundles of evidence with the court not less than four days before the Hearing date. The bundle should include copies of all documents relevant to the Hearing in chronological order in sections;

All parties will attend The Hearing with their witnesses and give evidence.

The court will give its judgement which must be recorded in writing with the reasons for the decision.

The grim reality of the court process is that it can be extremely slow. If contact is disputed reports will need to be prepared and this takes time and probably many months. It is often therefore necessary to apply for ‘interim contact’.

Waiting for a full hearing and having no contact during this time will result in particular problems:

The delay in seeing the children can result in a dangerous ‘status quo’ which can subsequently be exploited by the mother.

An obstructive mother will have the opportunity to alienate the children from their father during the intervening months.

Most fathers seeking an interim order will have already failed to agree with their ex-partner and are therefore looking for the court to order interim contact as they are desperate to see their children without any further delay. The earliest point in the court process at which this can be done will usually be the first directions hearing.

If you propose to ask for an interim Contact Order at the directions hearing you should warn the mother and the court. If you do not warn the court you may experience hostility or simple rejection of your request. The court will not have allocated time for the taking of oral evidence under oath.

If you fail to warn the opposition that you will be asking the court to consider taking minimal oral evidence so that interim contact can be ordered they will not prepare a case, and they may even send a junior or an agent rather than a competent advocate. Their failure would not be your gain, since the absence of notice would provide them with a reason for requesting an adjournment or that a formal directions hearing goes ahead without the matter of interim contact being considered. Possibly they would also seek costs against you for the extra court appearance any adjournment would necessitate.

It is essential to argue against any judge who may believe that ordering interim contact will prejudge the issue. By the same token, refusing interim contact is prejudging the issue since this decision initially gives credibility to the parent seeking to deny contact.

The potential consequences of stopping contact, or reducing contact to a matter of hours per month in a supervised environment, are so enormous for the children’s long-term relationship with their father that when such steps are to be considered the court should make some sketchy examination of the facts.

 

The history of staying contact would be important when considering whether to order interim staying contact. A record of regular and successful contact – photographs can be particularly helpful and is a powerful argument for contact continuing ‘in the interim’.

 

Non-compliance with a contact Order

 

Enforcing a child arrangements order when contact remains opposed by the resident parent has always presented a problem. That is one reason why mediation is encouraged in an attempt to agree the contract arrangements rather than have them forced upon a reluctant parent. Judges have always had the power to imprison for contempt a parent who disobeys an order but have been reluctant to do so for fear of worsening the conflict between the child’s parents. Apart from the power to imprison parents who breach contact orders, they may and have transferred residence/custody to the other parent. The difficulty however has been the conflicts with the court’s duty to make orders which are in the child’s best interests. It is rarely in a child’s interest to imprison one of their parents.

In December 2008 the Children and Adoption Act 2006 came into force. The aim of the Act is to be tougher on parties who breach contact orders and to introduce new remedies to run alongside the traditional remedy of imprisonment for a contempt of court.

A court must now attach a ‘Warning Notice’ to every contact order or variation of contact order made. The Warning notice will set out the consequences of failing to comply with the order and co-operate with contact. This will include the effect of an enforcement notice and the consequence of non-compliance. For ‘old’ contact orders made before 8/12/08,an applications can be made to have a warning notice attached.

 

Enforcement Orders

 

If a Court is satisfied beyond a reasonable doubt that a person has not complied with a Contact Order, then the Court can Order that person to carry out between 40 and 200 hours of “unpaid work”. This is what used to be called Community Service. But the Court cannot make such an Order if the Judge is satisfied that the person has a “reasonable excuse” for not complying with the Contact Order.

When an application to enforce a contact order is made the court must consider:

  • The necessity of enforcement order to ensure compliance
  • Likely effect on the parent and their religious, education, and work arrangements
  • Availability of locally unpaid work
  • The welfare of the child involved

CAFCASS will be sent a copy of the application and will be required to make checks as to the alleged non-compliance.

If an Enforcement Order is made CAFCASS will also be asked to monitor any requirement for unpaid work imposed by the Court. The National Probation Service will undertake the monitoring but will report to CAFCASS who will report to the Court on any non-compliance without reasonable excuse or if party becomes unsuitable to perform unpaid work.

The nature and effect has to be proportionate to the seriousness of the breach of the Contact Order. So, if there was a very minor breach of a Contact Order, it is hard to imagine that a Court would make an Enforcement Order against that parent. Crucially, a Court must also take into account what effect, if any, there will be on the welfare of the child.

 

 Compensation for Financial Loss

 

The Court can also order that compensation is paid by one parent to the other parent for financial loss which is suffered as a result of non-compliance with a Contact Order. But again, the Court cannot make an Order for compensation for financial loss, if the parent who was in breach of the Order has a reasonable excuse for non-compliance. As with an Enforcement Order, before making an Order for compensation for financial loss, the Court must consider what effect it may have on the welfare of the child concerned. This may limit the circumstances in which the Court would make a compensation Order.

 

A penal notice may still be attached to an order for contact. Make sure the order is in the above form.  If it is not, amend it.

Where the hostility of the resident parent to contact frustrates the order, the court may consider a transfer of residence or committal to prison.

Many judges are most reluctant to commit, particularly if the non-resident parent is not in a position to care for the child and it is a weapon of last resort:-

Monitoring Contact. The Children and Adoption Act 2006 also allows a court to monitor contact. The court can order that a CAFCASS officer monitors contact visits and reports back to the court on their success and the compliance of the parties

Contact Order Directions

A contact order directive requires a parent to take part in an activity ‘that promotes contact with the child’. Such can be counselling, parenting classes or sometimes anger management sessions. These orders are only available when an interim contact order is made and cannot be made as part of a final order.

Contact Activity Directions can require a parent to attend an information meetings about mediation, parenting information programmes and domestic violence prevention programmes. These directions can be at any time when a contact application is being considered. The court may also ask CAFCASS to monitor contact for a period of up to 12 months and inform the Court of the appropriateness of making such orders, taking into account the local availability of the contact activities, the parent’s suitability to participate including their work and other commitments and whether it will actually make any difference.

 

Cases on Contact Orders

 

Re H  (CONTACT ORDERS)

There is a strong presumption in favour of contact.

The court will make a contact order in favour of the “absent” parent unless it is demonstrated that to do so would be contrary to the child’s welfare:-

All applications are subject to the welfare principle and the welfare of the child is paramount.

 

Hostility to contact.

Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48

The court has to consider the reasons for the hostility and how it should be dealt with.  One issue is whether the hostility is “implacable”:-

Re P (Contact: Discretion) [1998] 2 FLR 696

Wilson J. outlined three ways in which hostility to contact might arise and how it should be dealt with:-

(a)   where there are no rational grounds – the court should only refuse contact where there is a risk of emotional harm to the child

(b)  where the grounds are insufficient to displace the presumption in favour of contact – contact should be ordered.

(c)    where the arguments are rational but not decisive

 

It is now recognised that a mother’s hostility to contact may arise because of violence by the father.  Where there are allegations of serious domestic violence, the court is most unlikely to make an interim order for direct contact.  The allegations will need to be investigated first and findings made at a fact finding hearing.

 

There is no presumption that findings of domestic violence against the applicant parent will result in no contact.  The court will assess the violence in the context of s.1(3)CA1989 and weigh the risks involved and the impact of contact on the resident parent and the child against the positive factors, if any, of contact.   The court will have regard in particular to whether the offending parent recognises his past conduct and his willingness and ability to change.  See:-

Re S (Violent Parent: Indirect Contact) [2000] 1 FLR 481

Re L, V, M, H (Contact: Domestic Violence) [2000] 2 FLR 3341

Re M (Interim Contact: Domestic Violence) [2000] 2 FLR 377

Re L (Contact: Genuine Fear) [2002] 1 FLR 621

Re G (Domestic Violence: Direct contact) [2000] 2 FLR 865

Re J-S (Contact: Parental Responsibility) [2002] EWCA Civ 1028

 

There may be circumstances in which it is appropriate for contact to be terminated.  See, for example:-

Re H (Contact Order) (No. 2) [2002] 1 FLR

However, this is a discretion which should be exercised carefully:-

Re J-S (A Child) (Contact: Parental Responsibility) [2002] 3 FCR 433 CA

 

Frequently asked Questions on Contact

 

Am I entitled to contact with my child?

The law encourages parents who are separated or divorced to maintain contact with their child. Contact should only be restricted where this is necessary to protect the interests of the child. The right to contact is a right of the child and not of the parent. Usually, parents are able to agree on contact arrangements. If this is not possible they may seek help from a mediation service or, as a last resort, seek a court order.

 

What if I was not married to the other parent?

It is still the child’s right to have contact with his other parent. This does not depend upon whether or not the child’s parents were married.

 

Who is entitled to contact?

It is not just parents who can ask for contact with a child. Grandparents, aunts and uncles, brothers and sisters, and anyone who has had a close relationship with a child may ask a parent for contact with the child. If contact is refused, it is possible that the person wanting contact will apply to the courts for a contact order, but this should be a last resort.

Additionally, social services have a duty to promote and encourage contact between the child and “any other relative or person connected with him”. However, it is important to remember that the child’s welfare remains paramount.

How much contact can I have?

This is something that both parents should be able to agree on. Contact should be ‘reasonable’, this will depend on what suits both the parents and the child. Some parents have contact everyday whereas some parents have contact once a year. Reasonable contact will differ from family to family. Some parents share weekends or have the children on alternate weekends so that they both have some extended time with their children. There is no legal definition as to what would amount to reasonable contact; it will depend on the individual family and its circumstances. If there is a court order relating to contact, this will generally state the times that contact should take place.

 

What about birthdays, Christmas and holidays?

Parents should reach an agreement on who has contact on these important dates. It is common to take it in turns, one parent has the child for one holiday, and the other parent will have the child for the next holiday. It is best to reach an agreement that suits both the parents and the child.

 

Can I take my child where I want during contact?

 As a general rule, a parent can decide where to take the child and how the time will be spent. However, this must be reasonable.

 

What is supervised contact?

It is possible to agree that contact should take place at the home of another person, or in the presence of someone else. It is common in these situations for the parents to agree that a grandparent, relative or mutual friend should be present during contact.

It is also possible to agree that contact should take place at a contact centre. For more information about contact centres, contact the National Association of Child Contact Centres on 0845 4500 280 or: www.naccc.org.uk

 

Can I refuse contact?

 Contact should only be refused where there is very good reason for doing so. Such as, if there is an issue of safety or violence then contact could be refused. Refusal to allow a parent to have contact is likely to result in an application being made to court. If contact is refused and the non-resident parent takes the case to court, the resident parent will have to explain why contact was refused. If there is already a court order in place for contact, refusal to allow the contact to take place will amount to contempt of court, and possibly further legal action.

 

What if I need to change a pre-arranged contact time?

Unless there is a court order that prevents this, a parent should be able to change contact times by discussion and agreement with the other parent.

There is no law that stops a parent with parental responsibility from taking a child to get a haircut or to get their ears pierced, but these are issues that can cause arguments between parents. It is sensible to mention it to the other parent and seek their consent first. If a parent takes a child to get their hair cut or ears pierced without the other parent knowing, this could cause tension between parents.

What about School meetings and records?

 If the non-resident parent has parental responsibility, he or she is entitled to attend school meetings and obtain school records irrespective of whether a contact although this in place. If a father who does not have parental responsibility asks for a school report and the mother objects, it is left to the discretion of the school. A parent can obtain school records under the Data Protection Act 1998, regardless as to whether or not they have parental responsibility.

 

 Can I pick my child up from school?

 It is best to agree this with the resident parent.

 

What should I do if my child lives with me and does not want to have contact with his other parent?

A parent should not react by simply stopping contact. They should try and find out why the child does not want to have contact anymore. It may be that the timing of contact is causing the problem and changes as to the timing or frequency need to be made.

Remember also that a child will often say what they think the parent will want to hear.

 

What if my child refuses to have contact even though there is a contact order in place?

If the court has made an order for contact, then the court expects the resident parent to encourage the child to have contact and ensure that it takes place. However, the child may simply refuse to have contact with the non-resident parent. Where this happens, the resident parent is at risk that he or she will be held in contempt of court. It is possible that the non-resident parent will refer the refusal of contact back to court. If the child really refuses to have contact, the resident parent should inform the other parent of what is happening and if appropriate make another application to court for a variation of the order.

 

What if a parent does not comply with the order?

 A court order is legally binding. Failure to comply with the court order amounts to contempt of court and a person can, as a last resort, be committed to prison for contempt. A parent cannot be held in contempt though simply for failing to take up the contact given.

 

Can I take my child abroad during a contact visit?

Generally yes if you have parental responsibility and it is for a holiday of less than a month.

It is sensible to try and obtain the agreement of the other parent before taking a child abroad. Parents should be reasonable about this and provide the other parent with plenty of notice. Remember to always act in the best interests of the child. If the resident parent has a residence order, they are able to take the child abroad for up to a month without the consent of the other parent. If they intend to take the child for longer than a month, they will need written consent of every person with parental responsibility.

 

What if I cannot make a contact session?

 If a parent is unable to make a contact session they should inform the other parent in good time. It is generally disappointing for the child if contact is cancelled at the last moment by either parent. If there is a special family occasion, which the non-resident parent would like the child to attend, the resident parent should try to be flexible so the child can attend. Just because contact times have been agreed, does not mean that there cannot be extra contact by agreement. If a contact order has been granted through the courts, it will often say ‘such other contact as may be agreed between the parties’. Equally, if the child has been invited to a party during contact time, and the child wishes to go, the non-resident parent should try to be flexible.

 

What if my child is not picked up or brought back on time?

The parents should reach an agreement on who should pick up or drop off the child for contact. Most parents tend to share this. The parents should try to stick to the agreed times as closely as possible, but allowances should be made for public transport, and traffic jams. If there is a contact order, the order will generally contain the arrangements for picking the child up and dropping them home.

 

What if there has been domestic violence?

 The courts take allegations of domestic violence very seriously.

Where domestic violence is the reason for refusing or limiting contact, the court will consider the allegations at the earliest opportunity and hold a fact-finding hearing.

If the parent seeking contact disputes the allegation and the allegation is serious and if proven is likely to affect contact, the court should:

  • make directions to ensure that all relevant evidence is obtained so that there can be a speedy hearing to decide what happened;
  • consider whether contact should take place before the hearing takes place; 
  • consider the safety of the child and the parent;
  • obtain a report from the Children and Family Reporter (CAFCASS) unless this is thought not necessary. If there is already a court order in place for contact, the parent will need to make an application to the court for the contact to be varied. The parent may also decide to make an application for a non-molestation order.

 

 If domestic violence is alleged, will there be any contact before the final hearing?

 It is possible for there to be contact before the final hearing although often supervised but before allowing this, the court will consider:

  • the likely risk of harm to the child if contact is ordered or refused,
  • how contact should take place, whether it should be supervised and how any risk of harm to the child and/or parent can be minimised,
  • whether a non-molestation order should be made,
  • whether the parent seeking contact should seek help and/or treatment as a precondition to contact being ordered.

 

 

 

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