It is so common to see children being used as weapons when relationships breakdown with one parent preventing the other from seeing a child. I have worked with many parents who have been stopped from seeing a child for extend periods of time by an ex partner, sometimes due to genuine concerns and on other occasions due to malicious and false allegations.
What should I do if I am prevented from seeing my child?
If there is no court order in place setting out the child arrangements, you should attempt the following:
- Discuss the problem with your ex-partner and try and resolve it without confrontation. Is there a mutual friend or family member that could assist? (If there is a non-molestation order in place this will not be appropriate).
- Consult a family solicitor who can advise you on next steps and write to your ex-partner to set out your concerns and proposals;
- Refer the matter to a mediator who could assist resolving the situation with your ex-partner;
- Apply to the court for a child arrangement order. (More on this below).
If there is already a court order in place an application can be made to the court to enforce it.
When can contact with my child be stopped?
Legally your ex partner cannot stop you from seeing your child unless access will be of detriment to your child’s welfare, safety and welfare concerns include things like criminal activity, domestic abuse, drug/alcohol misuse or other inappropriate behaviour that puts your child at risk.
However, until a court order is in place to determine what the child arrangements are for the children it is up to parents to agree the arrangements. Where child arrangements cannot be agreed, particularly where children are not able to see a parent at all, an application should be made to the Court without delay.
If a parent is stopping contact with you because of alleged welfare concerns they can seek a child arrangement order which confirms the child lives with them and doesn’t have contact with you. An urgent application can be made to the court without you being there to respond if the parent applying believes there is an immediate danger to the child. This is known as a “without notice order”. The parent making allegations will need to provide evidence to the court to support their case, this may include information from the police, social services, medical professionals or witness statements from third parties.
If you find yourself subject to a “without notice” hearing, do not panic, there will always be a second hearing in the court a few days later which you can attend and defend the allegations made in your absence and present your own views to the court.
A parent who stops contact may not make an application to the court. If that is the case,
you should make an application for a child arrangement order to have contact with your child straight away as it may take some time for the court to hear your case and any delay means further time you may not be able to see your child.
Do I have a right to see my child?
It is important to bear in mind that a parent doesn’t actually have a “right” to see their child. Parental responsibility gives you legal rights and responsibilities but no right to contact. The law in relation to child arrangements is entirely based on the child’s welfare and therefore decisions the court makes about child arrangements are based on the benefit to the child from seeing you, not because it will improve your quality of life as a parent. However, there is a legal presumption that the continued involved of both parents in a child’s life will best promote that child’s welfare, therefore in the absence of any safeguarding concerns, the court actively encourages a relationship between a child and both of their parents.
Can I make an application for an order if I don’t have parental responsibility?
As a parent, even if you don’t have parental responsibility you can still apply to the court for a child arrangement order. The court should consider whether it is appropriate to make a parental responsibility order when dealing with the other orders.
What will the court consider?
When making decisions in relation to your child and the appropriate arrangements the welfare of your child is the only thing the court will consider. It may be necessary in a case where allegations regarding the child’s safety and welfare have been made for the court to consider these fully before it can move on to the welfare questions. For example, if an allegation has been made that contact is not safe to take place because it is alleged that you have assaulted your ex-partner or child, the court will need to make a determination as to whether this happened, that is make a “finding” in relation to these contested issues before it can decide if and how contact can take place. Sometimes it is necessary for a “fact finding” hearing to take place during the first stage of the case and it is those “findings” which will determine how the court will make future decisions about your child.
It is important to note that legal proceedings are likely to take some time and involve a number of hearings, so you need to be prepared for a number of court attendances during the process.
What the court must take into account when considering your child’s welfare is set out in the “welfare checklist” and includes the following:
- The wishes and feelings of the child concerned (in light of their age and understanding);
- The child’s physical, emotional and educational needs;
- The effect a change of circumstances may have upon them;
- Age, sex, background and any characteristics which the court considers relevant;
- Any harm that the child has suffered or is at risk of suffering;
- How capable the parents are of meeting the child’s needs.
What sort of order can the court make?
The child arrangements contained in the order vary in each case and the requirements will be set out specifically for your family. It should include where your child lives and how often they spend time with the other parent. (These used to be called residence and contact orders). In addition the child arrangement order, can include the following:
- arrangements for indirect contact which would include things like telephone calls or video calls;
- specific details such as where, when and how handover take place;
- an agreement not to speak badly of each other in front of the children;
- arrangements for holidays and trips abroad;
- who is responsible for keeping and renewing the child’s passport;
- how the parents are to contact each other in an emergency situation;
- how the parents will keep each other informed and updated in relation to the child.
What is included in the order really depends on your individual circumstances and ability to communicate with each other. My preference is to have the least draconian order as possible in order to allow flexibility and variation when needed, however this is not suitable in particularly acrimonious cases. Where there is a history of really difficulties a more prescriptive order can assist with keeping the arrangements on track.
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