THE CHILD’S BEST INTERESTS
There is no set formula about how frequently children should see their non-resident parent but as a general rule the courts will consider that it is in the child’s best interests to sustain a relationship with both parents. This is based upon research which concludes the following:
WHY ACCESS- CONTACT IS CONSIDERED IMPORTANT
- Children blame themselves for their parents’ separation.
- Children view the separation as a rejection of them which is magnified if they lose contact with one parent.
- Children create a fantasy figure for the missing parent.
- Children have more difficulty forming relationships in adulthood if they have no contact with one of their parents.
- Children cope better with their parents’ separation and divorce if they retain a relationship with both parents.
The Public Policy and the attitude taken by the Family Courts is that in the child’s best interests to maintain contact with both parents. In other words a bad parent is considered better than no parent.
Recent research on young adults has contradicted the above policy. The research concluded that a poor relationship with one parent, coupled with an acrimonious relationship between the parents can be more harmful for the child than losing contact with one parent.
THE BEST INTERESTS OF THE CHILD
It is of paramount importance to the well-being of a child that the parents are able to put the child’s best interests ahead of their own need to undermine, or fight with, each other. Parents need to accept that their relationship as parents will continue throughout the child’s life and the child needs a loving independent relationship with both parents.
LEGAL ADVICE – CONTACT ORDERS
Where parents cannot agree a Family Court will make a Court Order determining the time, duration, frequency and type of contact (access) the child will have with the non-resident parent.
HOW OFTEN SHOULD CONTACT TAKE PLACE?
There is no presumption that a child should spend his/her time equally between each parent. The ideal contact (access) with the non-resident parent is considered to be every other weekend from Friday evening until Sunday evening or Monday morning, a regular night in the week and half of all school holidays.
Every family is individual and each case is decided on its own facts. The child’s age is an important factor. With very young children more frequent, shorter sessions of contact (access) are considered better.
THE WELFARE CHECKLIST
The same matters are taken into account in all Family Court Applications concerning children. This is called THE WELFARE CHECKLIST and includes the following:
- The wishes and feelings of the child, in light of the child’s age and understanding.
- The child’s physical, emotional and educational needs.
- The likely effect on the child of any change in their circumstances.
- The child’s age, sex, background and any characteristics the Court considers relevant.
- Any harm the child has suffered or is at risk of suffering.
- How capable each of the child’s parent’s (and any other relevant person in relation to whom the court considers the question to be relevant) is of meeting the child’s needs.
- The range of powers available to the Court.
FAMILY COURT PROCEDURE
Applications for a Contact (ACCESS) Order or a Residence (CUSTODY) Order commence before a District Judge and a CAFCASS (Children and Family Court Advisory and Support Services) Officer. They were previously known as Court Welfare Officers and are qualified Social Workers. The purpose of this meeting is to attempt to reach agreement between the parents. They will meet first with the CAFCASS officer, provided they agree. If there are allegations of domestic violence this is often not possible.
FAMILY COURT HEARING
If agreement cannot be reached the parents and their solicitors and the CAFCASS Officer go before the District Judge for Directions for Trial. Normally the parent’s file statements with the Family Court, and a CAFCASS Officer is appointed (not necessarily the same one, the appointment is allocated subsequent to the hearing by a CAFCASS Manager). The CAFCASS Officer will prepare a report with his/her recommendations for contact (access) after interviewing the parents and seeing the child with each of the parents if possible.
If the matter proceeds to a Final Hearing the parents and the CAFCASS Officer will give evidence in Court and will be cross-examined on it. Frequently, matters will settle prior to the Final Hearing in line with the CAFCASS Officer’s recommendations. It is rare for a Judge to make a Court Order contrary to the CAFCASS Officer’s Report, but if he/she does he/she needs to give his/her reasons for doing so.
Each case is individual and the above is a simplified outline of what can be an extremely complex procedure. We can supply sympathetic and robust Legal Advice to help you achieve the best outcome for you and your child.
Further information can be found on the CAFCASS website www.CAFCASS.gov.uk
If there are allegations of domestic violence this will be investigated by the Family Court but will not automatically preclude a Contact (Access) Order being made.
The Family Court will treat domestic violence towards the parent with care (Custody) of the child as a significant factor. The main priority is the welfare of the child and that begins with the safety of the child and the safety of the parent with care (Custody). Where the Family Court has made findings that domestic violence has taken place it is unlikely to require the parent with care to come in to contact with the non-resident parent. The Family Court may instead Order Contact to take place at a Contact Centre.
Before ordering Contact with the non-resident parent where findings of domestic violence have been made by the Family Court, the Judge will normally take the following into account:
- The impact the domestic violence has had on the child and whether the child witnessed the violence.
- Whether the non-resident parent accepts responsibility for his/her actions and is genuinely remorseful.
- If the Contact Application is being pursued as a means of bullying the parent with care or whether there is a genuine understanding of the child’s needs.
- Whether the non-resident parent understands the serious breakdown in parental responsibility which domestic violence is and the negative impact the violence has on the child’s well-being?
It is rare that the Family Court will consider that the domestic violence is so severe that no contact (access) with the child can take place.
TYPES OF CONTACT – ACCESS
DIRECT CONTACT ACCESS
This involves the non-resident parent seeing the child and usually occurs when the child spends time alone with the parent.
Where there are issues of domestic violence, or fears of child abduction, or where interim contact is ordered or agreed prior to a Final Hearing, contact can be arranged at a Contact Centre.
There are two types of Contact Centres:
- SUPPORTED CONTACT CENTRES
These centres are normally run by volunteers, in a Church Hall, with lots of toys. Children meet with their non-resident parent in a large room with lots of other children and non-resident parents for up to two hours. They are open on either a Saturday or a Sunday.
- SUPERVISED CONTACT CENTRES
These centres offer different levels of Supervision. They are professionally run and are open during the week. They are suitable where there is a risk, or allegations, of child abuse or a risk of abduction. They can also be used when the child has not seen the non-resident parent for a long time and a relationship needs to be developed.
The Contact (Access) takes place with the child and the non-resident parent in a room with an observer and can extend to total supervision where conversations are taped and the meeting recorded.
In exceptional circumstances where the Family Court considers it is not in the child’s best interests to order Direct Contact then Indirect Contact may be ordered, in the form of letters and cards. For example, this can occur in cases of child abuse or when older children refuse to see the non-resident parent.
We are able to offer in-depth legal advice and support and understand the emotional trauma that Court Proceedings in respect of children cause. We will act swiftly and decisively to secure the best outcome we can for your family.