This week Mary-Ann Wright, Managing Partner at Manders Law and Olivia Currie, Paralegal, consider the challenges of establishing or re-establishing contact and co-parenting in the face of opposition.
As someone born in the mid-1960s and having watched many heart wrenching episodes of Long Lost Family, and more recently DNA Secrets on BBC2, Mary-Ann began thinking about how in other circumstances, she might have featured in one of these programmes herself.
In 2023 we may not be dealing with forced adoptions, but the emotional harm to children and parents who are separated today is very real. In cases where there is no social services involvement, or genuine safeguarding issues, is there any proper reason for a child not to spend time with a parent and/or to even know their identity? Research in 2021 revealed that about one in 50 people do not know who their biological father is.
There has rightly been a lot of discussion recently about the weaponisation of the concept of parental alienation and the dreadful outcomes for some parents and children when this concept is misused, and the wool is pulled over the eyes of the family courts. Such is the level of concern about how such allegations should be responded to that the Family Justice Council issued a consultation paper on draft guidance on responding to allegations of alienating behaviour in August 2023. The mere threat of allegations of parental alienation can stop some victims of domestic abuse even resisting an application for contact by the abusive parent. This article is not intended to deal with those cases.
This article is concerned with why some parents are being prevented from being able to care for and have contact with their child without facing significant and costly legal challenges in some cases. Who will say “sorry” to the children affected by parental separation today, and who will the children blame?
Modern tools can assist parents who find themselves in this situation to a degree. After all there is Zoom making it far easier to keep in touch from a distance. There is DNA testing and social media, making it easier to trace and keep in touch with people. There is a court system which is rightly keen to promote the right of children to have regular and meaningful contact with the absent parent… but… this is not the reality that some of our clients experience when a relationship has broken down and a series of complex obstacles, both emotional and legal, may need to be surmounted to be a parent who is fully involved in their child’s life.
Read on for our top tips on how to make it less likely that you will find yourself in this situation.
The road to being distanced can end up being the road to nowhere…
Following divorce or separation, particularly where very young children are involved and one parent has moved out of the family home (possibly to a new location some distance away), difficulties in reaching agreement over appropriate arrangements, particularly around overnight stays, can quickly emerge. And that can be just the start of systematic exclusion from your child’s life.
When this happens it is understandable that the parent who has moved on from the relationship wishes to give the other parent time to come to terms with the new normal and not to “rock the boat”, in the hope that in time an effective co-parenting relationship can be established. This makes complete sense to the adults involved, but what about the children?
Top Tip – Time is of the essence and effective arrangements should ideally be established as soon as possible.
Where there’s a will there’s a way – but what about the roadblocks?
If you are, or ever have been in this position you are bound to recognise some of the most frequently encountered objections listed below, or indeed a combination of several of them:
- I am the primary carer
- My ex won’t cope, especially over night
- My child has a health condition/allergy and my ex does not know how to manage this
- The child is still being breastfed, so cannot be separated from me for any length of time
- My ex has a new partner, and I don’t want my child being upset by being “forced” to have contact with that person when the relationship may not last
- My ex pays no child maintenance, so why should they see the children?
- The logistics (pickups and drop offs) don’t work and I’m not paying for the extra travel involved to make it happen
- I don’t think my ex will provide a safe environment and should not be left alone with the children – there are safeguarding concerns
- My ex and their family will denigrate me to our child
- My ex takes drugs/drinks heavily/was violent towards me/the children
- My ex is a narcissist and cannot put the needs of the children before their own
- My ex is a coercive controller and only wants to see the children to continue to have contact with, and exert control over me
- My ex showed no interest in the children when we lived together and never went to school meetings, or their medical appointments
We could go on… but we won’t – read on and you will find the relevant applications to deal with all of these scenarios below
While it is true that in some cases there are genuine and valid concerns, too often the objections are emotionally driven and based on grief, anger and resentment at the failure of the parental relationship. Put simply, there is a desire to punish the other parent by denying them a relationship with children, when in fact the children are being punished. At its worst this type of behaviour can amount to full-blown parental alienation.
Top Tip – Mediation, counselling and family therapy can all help in the right cases, but not in all, so what can you do and how can the law help you?
The Children Act 1989
Private law applications in relation to children are largely governed by the Children Act 1989.
Under the Act, the court’s paramount consideration when determining any question with respect to a child’s upbringing will be the welfare of the child concerned.
The Act also states that, in respect of the applications discussed below, the court will presume that the involvement of each parent in the child’s life will be beneficial for the child, unless the contrary can be shown. ‘Involvement’ is defined in the Act as involvement of some kind, either direct or indirect.
Top Tip – Remember the court is not required to presume that either parent is entitled to exactly half of a child’s time.
The Act also sets out the concept of parental responsibility. Parental responsibility covers responsibility for all aspects of a child’s upbringing and welfare, such as where a child is to live, their education, their medical care, and all other day-to-day considerations. Mothers will always have automatic parental responsibility. Fathers will have automatic parental responsibility if they were married to the mother at the time of the child’s birth, or, if the child was born after 1 December 2003, if their name is on the child’s birth certificate.
Top Tip – Fathers without parental responsibility and step-parents can acquire parental responsibility, through either a Parental Responsibility Agreement, or an application for a court order.
Generally speaking, each person with parental responsibility may act independently of the other in meeting that responsibility. However, it will often be advisable to discuss and agree certain issues, particularly those relating to important matters such as education and health, in order to avoid dispute.
Top Tip – Always bear in mind that parental responsibility is no guarantee of cooperation.
Imagine your ex-partner informs you that they are going to make a decision relating to your child’s care or upbringing with which you strongly disagree. If you cannot resolve the matter between yourselves, you can apply to the court for either a Prohibited Steps Order or a Specific Issue Order.
- A Prohibited Steps Order (PSO) prevents a person with parental responsibility from taking a particular step without the consent of the court. The particular step will be defined in the order.
- A Specific Issue Order (SIO) directs how a particular question concerning any aspect of parental responsibility for a child should be resolved.
The court can also make orders called Child Arrangements Orders (CAOs). In particular, the court can make a CAO for residence, which regulates where a child is to live, and a CAO for contact, which requires the person with whom the child lives to allow the child to visit, or stay with the other parent.
FAQ – If I have a CAO for residence, can I decide how and when contact takes place?
Yes and no. Contact arrangements are to be agreed between parties, and both parties should then stick to the arrangements. The only way for contact arrangements to be forced upon either parent is via a CAO for contact.
CAO for contact: how it works
The usual form of this type of order is for “reasonable contact” – this leaves it up to you and the other party to sort out satisfactory arrangements between you. However, if this is not possible, then the court will define in the order what contact you are to have. This is called a Defined Contact Order, and it will determine the conditions of the contact, including dates, times, and places where contact should take place.
Top Tip – If you are thinking about making an application for a CAO for contact, we highly recommended that you keep a contact diary.
This is a record of how contact unfolds over time. When looking at contact, one of the court’s key questions will be: ‘What will cause the least amount of disruption to the child’s life?’. A contact diary is therefore a helpful form of evidence for a court to see what contact has looked like historically. The diary should note:
- Date of contact
- Time of contact, and whether the other party was late
- Time the child came back from contact, and whether this was early or late
- If contact did not occur when it should have, the reason why (e.g. your child was too ill; the other parent cancelled at the last minute; or they simply didn’t turn up)
- Anything unusual that happened, such as any injuries sustained by your child during the period of contact.
Remember, however, that the court generally applies a “hands off” principle. This means that the court will only make an order in the face of a real dispute between parents, and if it is satisfied that making an order will be better for the child than leaving things as they are, or than allowing the parents to try and resolve the matter themselves.
And finally follow the golden rules below:
- Take action as soon as possible if early agreement cannot be reached
- Do not let time pass by such that you find you are already excluded from your child’s life either temporarily, or permanently
- Make sure there is a paper trail of your requests and proposals
- Ensure that your proposals are courteous, constructive, realistic and that you will not over promise and under deliver, thus letting the children down by last minute changes to arrangements
- Seek legal advice (even if only in the background) at an early stage
For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 105 or email us here.
Note: this blog is intended to give an overview (rather than comprehensive guidance and advice) on your legal or financial position and is provided for information only. It is not an endorsement of any product or service provider.