Contact With Your Child
Week in and week out, parents attending our meetings report that their former partner is refusing to allow them contact with their children.
Contact denial can occur at any time. It is most shocking the first time it happens, often accompanying (and adding to) the pain of separation or divorce, but the potential for disrupting existing arrangements remains until the child becomes an adult.
It is important that contact denial is addressed at the earliest opportunity. In an emergency it may be necessary to make an immediate application to the court.
Unfortunately, the legal process can sometimes be very slow. It may therefore be advisable to apply for 'interim contact'. This term is generally used to describe contact arrangements which are made pending a full court hearing.
Three levels of difficulty in arranging contact follow from the other parent's degree of opposition:
- No opposition
- Amount of contact opposed
- Principle of contact opposed
Interim contact may be arranged co-operatively by parents themselves without any court appearance. This may have been brought about through their solicitors. Quite possibly, for example, a mother who is resisting a father's plans for overnight or 'staying' contact will agree that visiting contact should take place 'in the interim' before the court makes a decision on the father's application for staying contact. The different types of contact are outlined below.
Most parents 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. The earliest point in the court process at which this can be done is known as a 'directions hearing'. Where there is some agreement a 'consent order' may be made.
Amount of contact opposed
The court will normally want to establish some minimal arrangement for interim contact. This is much easier when the other parent is not refusing contact completely. They may be disputing the duration of contact or a proposal for staying contact.
The court may need to be reminded of the likely delay (sometimes six months) before a full hearing, and of the difficulties for the child in re-starting contact after such a period. In this situation the court may order very limited contact just to keep contact 'ticking over'.
Even though the child may already be enjoying quite lengthy periods of visiting contact, the other parent may refuse to countenance staying contact. It is also possible that, in response to making a court application, the parent living with the children may stop contact to be stopped completely.
The other parent should argue firmly in court that interim contact of the same 'quantum' as existed prior to the disruption should be ordered. The presumption should be that contact continues pending a full hearing, unless some prima facie evidence that the children need protecting is presented.
However, courts often order very meagre interim contact in these situations. The other parent's reservations may have some validity, so the court generally errs on the side of caution.
The court will seek to establish that the other parent is not opposed to all contact, and may ask them what level of contact they considers suitable for the interim. They may insist that contact take place in a Contact Centre or under supervision, even though they has previously expressed no reservations about the other parent's parenting. It is often enough for them to say that they will only countenance contact under these conditions for the judge to order it.
Principle of contact opposed
Some parents oppose all attempts to establish contact. The other parent's response to your application for contact may be that 'any contact will be against the best interests of the child'.
Faced with this, the judge does not have the freedom to order interim contact even if they believe the other parent's position is untenable; they are bound by precedents, by previous judgements in the Court of Appeal which have interpreted the law. The old adage 'possession is nine-tenths of the law' applies equally to children.
Judge Wall, sitting in the Family Division on a mother's appeal from magistrates' decision to grant interim contact to a father, has reviewed the position in his judgement (see Family Law Reports (1995) 1 FLR 495).
The headnote to this judgement reports:
"The guiding principle remained the application of the welfare test to the practical facts of the case. The fact that the need to re-establish contact was in the interests of the child did not mean that the court would necessarily make an offer for interim contact. The elementary question had to be asked as to whether it was in the child's interests for there to be an interim order for contact pending a final determination of that question. The greatest care had to be taken in making an interim order and without hearing oral evidence, to ensure that it was in the interests of the child and that the order did not prejudice the issue. It was difficult to envisage circumstances in which an interim order for contact could properly be made where the principle of contact was genuinely in dispute and where there were substantial factual issues relating to a child which were unresolved without the court hearing oral evidence or having the advice of an expert such as a court welfare officer."
It should be noted that in Judge Wall's judgement 'and' rather than 'or' has been used to combine disputed principle of contact and factual issues; both conditions must be met before the situation described comes into force.
Arguments to show that it is 'in the child's interests' for an interim order for contact to be made can be constructed in most instances.
If you propose to argue for interim contact at the directions hearing it is best to warn both the court and the opposing solicitor. 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.
It is important to argue against any court which 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 - is a powerful argument for contact continuing 'in the interim'.
Contact is the right of a child (see M v. M  2 All ER 81). There is no fundamental parental right of contact in the human rights sense, as any right of contact is always subject to the welfare of the child. The non-residential parent can apply under Section 8 of the Children Act for a contact order which is:
"An order requiring the person with whom the 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 involves the child being together with the parent. This may be either visiting or staying.
This takes place at the address where the non-resident parent is living. This may range from the former domestic residence, a bedsit, the grandparents home or a temporary bed and breakfast accommodation.
Where the child actually stays overnight with the non-resident parent. There is a 'tariff' set by the court welfare officers as to the maximum amount of time that a child ought to stay away. This can be disputed.
Contact arrangements made on a temporary basis until the matter is settled at a full court hearing.
Where the schedule of contact is determined by the court. This can be very detailed.
Where the parties agree the level of contact. This can often be an unstable arrangement due to differing views of what is 'reasonable'.
Supported ContactContact within a neutral community venue, with facilities to support the parent not living with the child (and other family members) in maintaining a meaningful relationship with them. Staff and volunteers are on hand but families are not monitored or evaluated, and reports are not made by staff following contact. Supported contact is used in cases where no welfare risks to the child have been identified.
Supervised ContactSupervised contact is used in cases where it is believed that the child has suffered, or may suffer, harm during contact. This form of contact is typically used when a referal has been made by a public body such as the court, Cafcass or the local authority. Contact takes place in a contact centre and is supervised by a member of staff at all times, with a colleague on hand to provide assistance if required. Details of these sessions are recorded by the staff. The contact centre will be made aware of the details of your case, including relevant court papers and judgements.
Supervised Contact AssessmentIn instances where contact has broken down, been prevented or is otherwise proving unworkable, contact centres may undertake assessments to determine an appropriate course of action. This may involve interviews with one or both parents together or separately, interviews with any other adults directly involved in contact, and wider involved agencies such as schools or health practitioners. Staff will also work with the child in a manner appropriate to their age and understanding, often without either parent present. This will form the basis for what recommendations are made for further contact.
Supported and Supervised ContactSome centres offer a combination of supported and supervised contact.
Indirect ContactIndirect contact is typically used to reintroduce a parent in cases where the child has not had contact with a parent for a prolonged period of time, or where there are safety concerns surrounding direct contact. This refers to situations where face to face contact has been determined to be unsafe, unsuitable, or not in the child's current best interests. It may take the form of letters, cards or presents, delivered through a third party such as a Cafcass officer. Indirect contact is initially ordered for a 6 month period, with a possible extension to 12 months if this is determined to be in the child's best interests.
Escorted ContactOnce contact has been established through a contact centre or elsewehere, and is determined to be regular, safe and sustainable, the child and parent may be accompanied on visits to outside activities such as parks or shops by a member of staff from that contact service. Staff arrange details such as travel arrangements and locations, and reports are provided to the local authority. This report will include the child's reaction, as well as assessments of the parent's comprehension of these visits and their ability to ensure such trips are successful and benefit the child.
Life Story/ Identity ContactSometimes, a child will have little to no knowledge of their parent before contact begins. In these cases, contact staff may develop a plan to establish and improve the child's knowledge of their parent. They will also submit a report to the Authority practitioner, outlining what actions have been taken, the child's reactions, and what future action may be required.
HandoverMost child contact centres can be used as a point where the children can be passed between parents, without them needing to come into contact together. The parent who the child lives with can drop the child off with the centre staff and/or volunteers, from where the parent not living with the child will pick the child up, and return them at the end of the visit. In some instances, it may be possible for pick ups to be made and one centre, and delivery in a different centre or location.