If two people have a child but don't live together, and the child lives with the mother, the father has regular access. Then the mother dies, where dose the father stand concerning his rights for full custody?
I have come across this situation on a number of occasions.
The simple answer is that unless there is a good reason for the child not to be living with their natural parent, the courts generally favour the child being with the parent that is still alive.
What circumstances would a court consider relevant to preventing a child living with the surviving parent? The answer is if it could be shown that to do so would not be in the child’s welfare interests. Perhaps some examples would help (but please remember that every case is different and depends on the detail). These are the sort of circumstances where I think a court would be unlikely to sanction a child living with the surviving parents:
- Where the child has already spent a long time living with someone else (e.g. grandparents) and has an established attachment with them that it would be harmful to disrupt.
- Where a child’s surviving parent is not capable of providing care for the child (e.g. drink, drugs, criminal activity etc).
- Where a child does not want to live with the surviving parent but wants to stay with their current carers and is old enough to understand that decision.
- Where the standard of care the child would receive from the current carers is very clearly and demonstrably better than that which would be provided by the surviving parent.
Do you have Parental Responsibility? If you do, then your are probably the only adult that does. As such you have a legal right to decide where the child live and could, as a strict matter of law, go and get the child. Only a court order could prevent this. However, I am not suggesting that anyone does this, especially if a parent has just died. If someone else is looking after the child it is much better to explain to them that you would like to spend more time with him or her with a view to the child then moving to live with you. Again, if you have Parental Responsibility (PR), without a court order, another adult cannot legally stop you seeing your child. If you have PR the onus is on whoever is looking after the child to apply to a court for an order preventing someone with PR from doing something in relation to the child.
However, these situations can be very difficult and emotional so it is wise to tread carefully. This is certainly a situation where I would advise speaking (quickly) to a lawyer. What often happens is that a child’s grandparent or other relative takes over care of the child ‘naturally’ and of course there are a lot of emotional issues. They can feel an immense sense of loss (as can the child) when they have cared for the child in a time of crisis and then the living parent turns up and ‘demands’ the child. That child can of course also be even more important to them because they are a connection to the person who has died. They may feel they ‘owe it’ to the deceased parent to bring up that child etc.
If that situation persists i.e. if a child lives with the relative for a long time, it then becomes harder for the natural parent to argue that the child should move to live with them, as the child will establish routines and attachments with the current carers. It may also be that the child feels ‘closer’ to the relative (especially grandparents) if they have been in their day to day lives whilst the parent was alive.
If you do not have Parental Responsibility then you do not have the right to say where and with whom the child lives. You must apply to the Court for a Parental Responsibility Order and an Order that the child ‘lives with’ you. This should be done as soon as possible for reasons that I have set out above, unless the current carers agree for the child to live with you. Even then, it is sensible to always have PR for your children.
Also do not forget that the child is likely to be very close to whoever is currently caring for him or her. It is worthwhile thinking about what you will ‘offer’ in terms of the child maintaining a relationship with the that person and the deceased parents’ family.
In a previous post here I have set out some helpful law relating to the importance of children being brought up by their natural parent.
Basically I had a fling with a girl and got her pregnant, throughout her pregnancy I was awful towards her and our unborn child, I asked her to abort the baby and she chose not to. She tried keeping me involved but I refused, I didn't go to the birth and showed no interest, I even refused to go on the birth certificate so she has full PR. After my daughter turned 5 weeks I had a DNA test done and it turned out she was mine but then my x refused me to be involved as I was smoking cannabis and my behaviour through out the pregnancy, she finally came round however I then moved away due to work but we agreed I would be back every other weekend to see my daughter. She is only 11 weeks old and when she stops over I leave her to sleep with my Nana as I am to tired. My ex has found out and ha now stopped my daughter sleeping over, she said I can see her for a few hours on Saturday and that's it.
Can I take her to court and get my daughter to stay over again? Plus can I stop her moving away? If not how would I get to see my daughter if she moved 6 hours away?
You have asked two question - (1) how can I increase the time I spend with my daughter and (2) can I stop the mum and child moving, even if it is far away?
You have been very frank in your question and I can understand why there are issues of trust between you and your daughter’s mother.
The short answer to your question is that you could go to Court and ask to spend more time with your daughter. If your nan is a trustworthy capable individual I suspect that a Court would have little issue with the fact that she stays with her, as she is a member of your daughter’s family.
However, looking at it from mum’s point of view, I suspect she thinks it is a sign of you not being committed to your daughter and from what you say about the history it is understandable that she may think this way. I have done many cases where mums have stopped contact completely when they have found out that another family member is caring for the child instead of the person they have been told is doing it. “You ask to spend time with her and then do not spend all the time that you can with her, instead putting your work commitments and being tired before caring for you daughter” maybe the sort of thing she is thinking. If she does not know your nan, her insecurity will be exacerbated. I am not saying that this is the correct approach, but I am saying it is understandable.
Although you could apply to a Court, I would advise trying mediation first. I suspect that there are no ‘welfare’ issues i.e. that your daughter is not likely to come to harm, it appears to me that you would both benefit from discussing the issues with a neutral third party to help. It also has the advantage of being cheaper and quicker.
I would also suggest you think about changing the arrangement and suggesting you and your daughter stay over at your nan’s?
Remember, you and your daughter’s mum are tied to each other for at least the next 18 years, so it is much better to try to negotiate a solution than take her to court. It should be a last resort.
With respect to moving, I could recite lots of law on this but the basic answer is simple. In the UK Courts the view is taken that an adult is free to move in the UK wherever they like. If they are the primary carer for a child, then the child goes with them and the time they spend with the parent the child does not live with is worked out after that. The exception to that general proposition is that a court will prevent a move if there is a good child welfare reason to stop it. Very generally speaking this has to be more than simply ‘it will be harder for the child to spend time with the other parent’. In recent cases I have done, moves have been prevented when the children are old enough not to want to go or the move is ill thought out and will demonstrably not be in the child’s best interests (e.g. changing schools at a crucial point). It would, in my view, be quite difficult to successfully oppose a move when the child is a baby unless you could show that where the mum intended to go was likely to cause the child harm e.g. to move to live with a new partner who was violent.
If she did move away (and I do not get any sense from your question about how likely this is) then a court would be likely to put some form of order in place to ensure that you spent time with her. How this would work depends on many things (who can travel, where to, where they can stay etc) but I suspect that whilst your daughter is a very young a court would expect you to travel to her for some or maybe even all of the visits.
Of course, if she did move, things are much easier to arrange if you and mum are getting on and able to communicate reasonably with each other. So if there is any real prospect of this happening suggest to her mediating a solution rather than rushing off to court.
Can I firstly thank you for your brilliant website. There seems to be a dearth of good, accessible, easy to understand, information about children family law and its processes on the internet.
My daughter is now 4 and has recently started school. Her mother and I split up when she was only 6 months old. I initially discussed with her mum, that we both have shared residence and an equal amount of time with our daughter. However, although we lived as a family at my flat before we split, she was adamant at the time, that she would only agree to contact on Mondays and Thursdays - when she could not look after her - as she worked part time. Also, in her opinion, our daughter was too young to be away from her overnight.
We initially went to mediation. From the outset I made it clear I wanted to be a hands on dad and wanted our daughter to have a home with me. I did not want my role in her life to be marginalized or be a part time dad on the periphery of her life. From the time of the split I saw my daughter on Monday's, Thursday's and some weekends. It was only when she took legal advice did she eventually agree to our daughter staying overnight with me, that was when our daughter was 18 months.
That was initially every other Thursday. When she was two she agreed to every Thursday.
It has allowed us to build a solid foundation for our daughter on a cooperative basis. We are both fully committed to our daughter and have a good understanding, attending medical appointments together, spending time together with her on Birthdays, Christmas Eve & Day, and making joint decisions about nursery and school etc...
In addition to all of this, since our daughter started school in September I have also taken our daughter to school every morning except Monday's when her grandparents take her - as she usually stays there on a Sunday.
I also pick her up after school on a Monday till 6.30. Thursday she stays over night with me (as she did when she attended nursery school.) In addition I see her Three Saturdays a month. One of which she stays overnight and one we jointly take her on a day out.
Mum picks her up from mine on a Monday at 6.30pm. However, I have recently mentioned to her mum. I would like her to stay with me on a Monday night. As I have always maintained as she gets older, I'd like her to spend more nights with me. I feel it would be better for her as I take her to school on a Tuesday anyway and it would be less disruptive (a car journey for another half an hour to go back to her mums to effectively go straight to bed.)
We have reached an impasse, her mum disagrees and has now said that she wants to put her in pre-school and will never agree to two school nights a week. I have suggested mediation, but she has said she's to busy (she is currently studying for a new career.) She has blamed me for her having taking a day off last week due her being stressed out at the thought of our daughter spending any less time with her. She has said as a result of that, it will now affect her overall grades.
She is a great mum... she also acknowledges I'm a "good father". She does have a niggle about me being 5-10 minutes late when she collects our daughter, although it has only just been mentioned. I feel given the fact she regularly spends a Sunday night with Grandparents that staying with me two school nights a week isn't excessive. I am self-employed so I can tailor my working hours to suit my daughter needs.
With prior agreement with her grandmother on one occasion I arranged that she pick our daughter up on a Monday, as I had to travel to London for business and she took her to school in the mornings - while I was away for two nights. I could have got someone from my family to take her on my behalf, but as they live closer it made more sense. It was very last minute and our daughters Mum has cast this up recently and also brought up an occasion in 2010, when I was sick and didn't pick our daughter up in the morning and was unable to contact her until later in the day. I feel this will be held against me in court.
I am reluctant for the court to intervene and I'm torn on the matter. As it would be interpreted as personal by her mum and very much "me taking her to court". She has also recently stated that in her opinion "she makes the decisions and if I don't like it take me to court". Also, I feel that court proceedings would undermine the solid foundation we have built for our daughter. She has also intimated she would give up the course she is on rather than spend any less time with our daughter and agree to her spending two school nights with me.
The last thing I want is things to turn sour between us and me become her nemesis in her eyes. When all I'm suggesting is that my daughter spends more nights with me. I buy her clothes, coats, shoes, school uniform etc... I feel a proposal by her to me of weekend stays every fortnight is a lack of acknowledgement of my role in our daughter’s life. We both have partners and my daughter has a good relationship with mine and I'm wondering if that has anything to do it.
How is a judge likely to view all of this.....? Would a judge feel that the time my daughter currently spends with me is adequate or excessive and potentially reduce it? Also if "Shared residence" and "Contact" terminology is going to be omitted in the new Children and Families Bill, how is the change in the law likely to affect my request to continue to take our daughter to school. Can the Child Arrangement order be that detailed to include something like this? I'm aware that there will be an acknowledgement that both parents involvement in the lives of their Children will further the welfare. Would a judge agree that my daughter spending time with me in the mornings, re-capping on homework for instance, is better for her than going to pre-school at 8am? Or would I have to apply for a prohibitive steps or specific issue order in this regard.
Also if it does go to court, is photograph, video / phone footage on a DVD-R admissible to accompany my statement? Can this be shown to a judge in court to show the close bond I have with my daughter as I have lots going back from when she was born?
This is a long question but I have not edited it down much because I suspect it reflects a similar situation for many parents who have contact with their children.
It also demonstrates the limits of the advice a lawyer can give, which I will set out below. I understand your misgivings completely – rock the boat and risk getting less contact with your daughter or alternatively put up with a situation you do not feel adequately reflects your role in your daughter’s life?
As I understand it the current contact arrangements are as follows:
- Every Thursday overnight;
- Every Monday after school until 6:30 pm;
- One Saturday a month, just you and your daughter;
- One Saturday a month, shared with mum; and
- One Saturday a month overnight.
I understand that you also take your daughter to school most mornings.
It seems you are able to reach agreement over ‘special days’ such as Christmas etc. You do not mention what happens during the school holidays, a subject to which I will return below.
On what you have told me, there does not appear to be any substantial criticism of you as a father or your ability to care for your daughter. The contact you are having at the moment demonstrates that there can be no ‘in principle’ argument to you spending more time with your daughter based on any alleged inadequacies as a father. A Court would not, frankly, be the slightest bit interested in complaints about being a few minutes late or things that happened years ago.
It is not unusual for the resident parent (the parent the child spends most time with) to feel strong emotions when it is suggested that their child spends more time away from them. Such emotions are more about the adult needs than what is best for the child but they can be a powerful factor. It is often difficult to accept that a child is the product of two people and that the child (if both parents are equally capable of caring for the child) is entitled to have both parents involved in that child’s life for substantial periods of time. I detect a degree of emotional blackmail in statements about giving up the course etc. I do not know your daughter’s mum, but I have experience of many such threats (from mums and dads) which do not come to fruition. They often turn out to be a method of trying to exert some control. Remember, if it is your daughter’s best interests to spend more time with her father, then you are not responsible for an unreasonable or irrational reaction to that suggestion.
If you were my client and on the basis that you are an unimpeachable father (i.e. that there are no real reasons why you could not care for your daughter for longer periods of time) then I would expect to persuade a court that she should be spending more time with you. She is 4 years old, now goes to school, is used to having overnight contact with you and you appear, on what you have said, to have been patient and reasonable when it comes to your ambitions where contact is concerned.
My experience is that Courts do not generally like children to-ing and fro-ing between parents during the school week as it may be disruptive to school life. However this seems to work on a Thursday night so it is certainly reasonable that it will work for another night in a week, especially given that she spends time with you on Monday evenings. Your argument that on Mondays she only goes home to her mum to go to bed is a strong one.
Assuming what you have said is correct, I see no reason why your daughter should not also be spending more time with you at weekends. Why not one weekend a month where she gets a whole weekend with her dad, so that you can go places together etc?
I am not clear what happens during holidays? Do you take your daughter on holiday? Does she spend additional time with you during the school holidays? Many equally capable parents share school holidays equally or at least have set periods where they can take their children away for one or two weeks on holiday. If this is not the case at the moment, you appear to have a good argument for making it the case.
I think you can see from what I am saying that I think, on what you have told me, that your chances of persuading a Court that your daughter should spend more time with you are good. I think it unlikely that a court would reduce your daughter’s time with you.
That is not to say I think you should rush off to court. Your suggestion of mediation is a good one. It might be a good idea to discuss with mum the fact that mediation is cheaper and quicker than going to court (which can often take many months and will certainly involve more disruption than attending mediation). Faced with the choice of mediation or court, sensible people choose mediation and only go to court if that does not lead to an agreement.
I cannot give much advice about your fears of ‘rocking the boat’. I do not know your daughter’s mother, only you can make that decision but statements like . Certainly a resident parent can make things difficult for the non-resident parent if they choose to. However, it may be that your daughter’s mother has used direct and implied threats to make sure you do not ‘push it’. Sometimes showing someone that you are determined to pursue a more equitable arrangement is the best way to put an end to such tactics. Certainly, if true, comments along the lines of ‘my way or the high way’ will not impress the court. It might also be a good idea to suggest that she gets some advice. I note that mum only allowed overnight after taking advice - I suspect she was told what the likely outcome of any court case would be.
The ‘Child Arrangement Order’ provisions will, frankly, make very little difference. Have a look at my post on the new provisions here. The orders will have the same effect just with different names. The court will still be able to make provision for taking to school etc. The core of any Court’s decision will still be the child’s welfare. A court will nearly always favour a child being with a parent rather than a relative or professional carer (eg pre-school or babysitter) providing the parents is available, reliable and committed.
The evidence you suggest (photos etc) are perfectly admissible however giving the court with too many will ensure that the judge does not look at them! In the right circumstances they can make a marginal difference. I would not worry too much. The fact that you see you daughter so regularly probably speaks for itself as to your commitment. If mum really had any concerns about your relationship with your daughter, you would not be taking her to school every morning etc. It may be a good idea to say in a statement what you have (how many and over what period of time, what they show etc.) and just to exhibit a few examples.
Have a look at my post on writing statements to help you think about what you would want to say to the court.
Family cases are often about the detail. I want to stress that the above response is only general advice and I cannot make predictions as I only have your side of things. If in doubt, I would always advise going to see a family law professional. Have a look at my pages on getting a lawyer and controlling costs if you are thinking of going to court with a lawyer.
My son’s ex girlfriend has admitted taking cocaine a few months ago. She has custody of his 2 year old son and we are so worried he has gone to court for custody and the judge has requested a hair strand test for cocaine, methadone and cannabis. My question is: How much cocaine or other drugs has to be detected before the courts feel he is at risk? I know she has stopped taken them now but will continue once the court is over!
The hair strand testing will give an indication of the level of drug use that has taken place in the past. It will not show the Court the precise amount used as there are many variables but in general it will show whether:
• There has been ‘one off’ use of an illegal drug;
• any illegal drug use has been compatible with ‘social’ use i.e. now and then. The sort of use that is compatible with occasional use at parties/night clubs etc.;
• more frequent use compatible with regular intake (in the region of weekly); and
• high use compatible with very regular intake.
They sometimes can also tell whether some drugs (in particular cocaine) have been used in conjunction with alcohol (as a particular substance is produced when they are taken at about the same time). This can be useful, because if you have low use at the same time as alcohol, it tells the Court that it is very likely to be ‘social’ use e.g. at a night club etc. If you have high use in conjunction with alcohol, it might indicate that there are many problems, including alcohol abuse.
‘Social’ drug use is relatively common, with about 9% of the population using some illegal drug in the last year, according to the latest Home Office figures. The Family Courts probably see a higher proportion because often family cases involve issues around drug use.
Obviously, much will depend upon the level of drug use.
The Court will not ‘approve’ of occasional social use but my experience is that such use would be very unlikely to give rise to a parent being declared unsuitable to look after a child unless it could be shown that there were other substantial difficulties with the way in which that child is being cared for, whether those difficulties are brought about by the drug use or because of other factors. If the level of drug use is high, the court is much more likely to look at other options for the care of the child, including an alternative parent.
However, what you have to bear in mind is that ultimately the decision depends on the Court’s assessment of the overall welfare of the child. One of the factors that will weigh heavily with the Court will be with whom the child has been living up to now. If the child has lived primarily with the mother since birth, the situation must be shown to be serious before the court will transfer residence to another parent. The Court will take into account all of the things in the Welfare Checklist, not just the drug test results.
So, it is important to look at the whole situation. It may be that the mother has admitted occasional drug use but if the relationship between her and the child is good and the child is well cared for, some low level of drug use will in reality likely to be tolerated by the court. On the other hand, if there is evidence that the care of the child has suffered, the court is more likely to be persuaded that the child would be better off living with the other parent, assuming that the court is satisfied that the other parent will meet the child’s needs.
Social drug use may however be a good reason for the child to spend more time with his father. For example if mum likes going out every Saturday partying, where she is most likely to have the opportunity to take drugs, that may be a good reason why the child should be with dad for some or all of the weekend. Also, it can be argued that where there are doubts about one parent it is a good idea for the other parent to have plenty of care of the child because that way they can keep an eye on the child’s welfare. The important thing is that any care arrangement operates to ensure that the child’s needs are met, not those of the parents.
I know that is not a definitive answer, because there is not one, but hopefully you get the idea.
Hi there I am slightly confused in trying to help my brother.
The situation is this: a child was removed from the mother’s care and placed into care, her dad then fought for custody.
The dad won a residence order for permanent residence until the child turns 18, she is 3 now and the mother has made no contact, she hasn’t even attempted contact with the child for 2 years.
Dad is terrified she could come anytime and demand to see the child, due to the reason why she was taken into care in the first place and the fact she hasn’t even bothered for 2 years.
He wants the right to refuse. Can he? Or if he does can she take legal action based on his current order as it doesn't state whether she can/cannot see the child. Given the previous situation we think she shouldn't be allowed near the child.
The father of the child has a Residence Order. Legally that means that the child lives with her father in his day to day care. In general he is in charge of who the child meets and has contact with. The child’s father would have every reason to initially refuse direct contact between the child and the mother if she suddenly turned up out of the blue and asked to see the child, based on her prolonged absence and whatever she did to lead the child to be taken into care in the first place.
If the child’s father refused to allow contact then the mother will have only one choice - to make an application to court for a contact order. If she ‘took matters into her own hands’ i.e. sought contact with the child against the father’s wishes, for example by visiting the child’s school/nursery, he can apply to court for a prohibited steps order or an injunction.
Either way, the matter may end up back in court. Unfortunately I suspect from what you tell me it is unlikely either the father or the mother would qualify for legal aid, although it may be worth the father asking a solicitor as he may qualify under the ‘protective party’ test. See my blog on it here.
The issues are not entirely straightforward as the court would need to look at what is in the child’s long term interests. If the mother is still unreliable and beset with the difficulties that lead to the child being taken into care in the first place, then it is probable that a court would not think contact would be a good idea as it will do more harm than good. In all likelihood she will have to go to great lengths to satisfy the court that she has changed. However, if the mother’s circumstances have changed and she can convince the court that she will be reliable, the court may consider that some contact is a good idea, perhaps starting off with indirect contact (cards, letters, photographs etc), progressing to some direct contact (face to face). Ultimately the court would consider all the things in the welfare checklist.
If the mum does ‘turn up’ asking for contact, it may be that mediation would be a good idea. This can be a better way of getting adult feelings of resentment and fear out in the open. I’m sure that the father would feel many negative things if mum did turn up, even if she were a ‘changed person’. The court arena is often not the best place to deal with and communicate those feelings.
It is also worthwhile remembering that it is likely the child will at some stage be curious about her mother. This is entirely natural as part of her comes from her mother. She will have many questions - what does my mother look like? Why did she not want me? What could she not look after me? Will I turn out like her? You can imagine all this things that will be likely to go through her head at various times as she grows up. It is important that these questions are answered sensitively and carefully in an honest and age appropriate manner but also without ‘demonising’ her mother. If she thinks her mother has no redeeming features whatsoever what does that tell her about herself?
Sometimes it can be very hard for another parent or relative to see any good in the absent parent, for entirely understandable reasons. Sometimes if a child displays curiosity about an absent parent it stirs up feelings of rejection in the parent that has committed to that child. These are hard emotions to come to terms with. The temptation is to avoid those feeling and deflect the child’s questions, which is not always the right thing to do in the long term. Any future court would, counter intuitively, be more likely to order contact if it came to the view that the child only received negative messages about her mother at her father’s home. Remember that silence and refusing to talk about someone can often be as negative as positively denigrating someone. Children are very perceptive when it comes to ‘unspoken’ messages. Ideally the remaining parent should not wait for the child to ask questions but should treat talking about an absent parent as a normal and healthy thing to do.
At this stage there is nothing specific that dad should do in terms of legal action, other than make sure he keeps all the papers and orders from the care proceedings so that he could easily show any future court what happens and why he objects to contact. He should and can of course make the child’s school/nursery aware that he has a residence order and that the court did not grant the child’s mother any contact and that the child has not seen her mother for a long time.
I hope this helps.
I am currently self representing and have just attended a directions hearing, as the applicant, where I have been directed to write a statement for my reasons for applying for sole residency. My 2 children have predominantly lived with me for 5 years and during this time many concerns have come about regarding the mother's ability to care for the children when they are with her, at weekends.
Through the family law questions site I understand how to put this statement together, however, with my situation the statement I have drafted seems way too long. Is there a preferred length and can I include my concerns without documented evidence, for example some of the things the children have told me. They are 5 and 7.
I can see from your question that you have already read my pages on statement here.
You might also find it helpful to download the template statement that is sometimes used in Liverpool County Court, which you can do by clicking here. This gives you a good guide as to the sort of things the Court usually likes to know and provides a useful structure. You can of course adapt it to suit the circumstances of your case. It is in ‘Word’ format.
Drafting statements is difficult and a definite skill. Too long and you worry that the judge will get board reading it (that are only human) or that it contains irrelevant details. However, statements are important as you will not get the chance to say it all over again in court, so generally speaking I would advice putting everything in you consider relevant.
You can of course attach exhibits and documentary evidence of things you are asserting. Just remember that the other side or the court may want you to back it up - e.g. if you file a letter from someone they may insist that the author attends court to give evidence about what the letter says.
You ask specifically about what the children have told you. This is a judgment call (I wish I could be more helpful). However, given their ages the Court is likely to consider that there is a real possibility that whatever they have told you is influenced (not deliberately) by what they think you want to hear. This is particularly true when it comes to their wishes and feelings. Children are very adept at picking up on non-verbal signals. They generally get to know if one parent is pleased when a child says something negative about the other parent, even if the parent thinks they act in the most neutral way when discussing the other parent. That is not to say that you should not set out in your statement what the children have said but it is a good idea to show some insight into possibility that they may be telling you what you want to hear.
The best type of evidence about what children say is usually from a more neutral source e.g. a teacher or CAFCASS officer.
I hope this is helpful.
I have recently broken contact between my 4 year old and his father as I have safety concerns about the child whilst in his father's care. There is an order in place for overnight contact but I feel this is unsuitable as there are allegations of sexual abuse from my ex's 6 year old step son towards our child as well as my ex's 13 year old son from a previous relationship stating he saw the child reenact what he does to his little half sister who is now 16 months old. I've contacted the authorities and referrals have been made. Police contacted too. Unfortunately my ex believes the allegation concerning the little girl aren’t true so our child won't be believed sadly. How do I protect my child and will a judge punish me for the contact order not being followed?
Allegations of sexual abuse are one of the most difficult situations to deal with.
If someone is concerned about an allegation of sexual abuse, then making a referral to both social services and the police is the correct thing to do.
As I understand it from your question, you are aware of allegations of inappropriate sexual behaviour by the 6 year old step son of your child’s father against both your child and his 16 month old half sibling. There is some evidence from your child’s father’s 13 year old son to support that possibility.
In the circumstances a court would take a precautionary approach until the matter had been investigated. That is to say, that your child should not come into contact with the child against whom the allegations have been made. If the father will not agree to this being a condition of his contact with his son until investigations have been carried out then I can see little choice for you at this stage but to deny contact. If a contact order is in force you should apply to the court to vary that order on the basis of the allegations. It would be better to do this than wait for the father to seek to return the matter to court to insist on his contact. Likewise, it is better to try to reach a compromise before hand e.g. contact at a contact centre or in some other circumstances where you know that your son will not come into contact with the alleged abusive child.
If the police and social services investigate the matter and do not take any action you will have a choice. If there is some evidence to suggest that the allegations are true, then any court considering the contact dispute may seek to investigate the matter further and reach a conclusion as to whether some inappropriate sexual behaviour has occurred. They would do this in what is called a ‘Finding of Fact’ hearing. I have written more about how family court’s deal with factual disputes here.
What you must appreciate is that in a legal setting the facts that a court basis it’s decisions on are either true or not true. There is no middle ground. Suspicions are not enough. If the court concluded that there was inappropriate sexual behaviour on the part of the 6 year old, then the case would proceed on that basis, in all likelihood with a prohibition on that child coming into contact with your son and a requirement on the father to accept and act on that conclusion. On the other hand if the court concluded that the 6 year old did not behave in an inappropriate way then the case would proceed on that basis i.e. contact would be in all likelihood ordered to re-start with no restrictions relating to the 6 year old, and you would be expected to accept that decision.
I am sorry I cannot be more specific. Some of the most difficult cases I have been involved in revolve around allegations of sexual abuse (both true and untrue) and they are usually complicated and difficult to unravel. I would definitely suggest taking advice from socials services as to how to proceed with respect to contact and getting the help of an experienced family law solicitor if you are unhappy with social services’ conclusions or the father’s reaction to social services’ advice.
Apologies to the writer but I have had to edit what was a very long question.
I had a relationship with my ex partner. We had only been together a couple of months when she got pregnant. Soon after the baby was born I realised she had issues with alcohol. Social Services became involved after she was found drunk in charge of our baby. Our baby was placed in care of maternal grandparents. Mum has not accessed support for her alcohol issues and now social services are supporting grandparents to apply for residence of our daughter (who is now 2 and half years old) and also mum’s two older children (8 and 11).
Mum made false allegations against me about domestic violence and drug use (cannabis). She has also said that we have continued to have a relationship with each other (when in reality it ended a year ago). She has made these allegations, I presume to weaken my chances of getting more contact with my daughter (I see her for 3 hours every Thursday and most of the day every Sunday). I have not yet been able to have overnight contact with my daughter.
My daughter has lived with grandparents for approximately 2 years.
I am going to court to argue against grandparents application for residence and I am seeking residence. I have 3 other children that I have contact, including overnight, very regularly.
I intend to represent myself at court. Grandparents have a solicitor.
There is no truth, and no evidence to the allegations of domestic violence or drug use.
I would value your opinion as to which way you might expect the court to go with this. I understand that my daughter has been with grandparents a long time. Does this mean it is very unlikely that I will be successful in my application for residence?
Would it be appropriate/beneficial to take with me letters from my two ex partners (who I have children to) which will state that I have never been violent to them ever, and that I am a good father and constant and consistent parent to my children?
I would have applied for residence earlier but I have been supporting social services' plans for my daughter to return to her mother (but just before the planned return mum started drinking again, and she was warned that this wad her last chance). I believe strongly that I am a good parent and believe my daughter would be well cared for by me.
Unfortunately, if I did get residence then my daughter would need to go to full time nursery as I work full time. Would it be appropriate for me to suggest that grandmother cares for my daughter some of the time so that she would not need to be in full time nursery until she gets older. Or would the court think that if that wad the case then my daughter is just better off living with grandparents. My relationship with grandparents is not very good, due to the allegations about domestic violence and drugs.
Social workers (there have been several) seem to believe her lies, the health visitors, everyone, even though there is absolutely no evidence. I was arrested last year after an allegation about domestic violence. But all charges were dropped. I know there are many fathers (and some mothers) who suffer much more than I do, and have much less contact. Do you have any advice or anything to tell me about my case, and advice on representing myself, I would be thankful.
There is a lot in this. Lets start with the main reason why you suspect social services are supporting the grandparents over you. Mum has made allegations of domestic violence. You deny them. You must make this clear from the very start. In family cases something is not true until the court decides it is true, on the balance of probabilities. I explain more about how the court decides factual issue here. If social services have indeed proceeded on the basis that the allegations are true and then the court decides that they are not, you will have gone a long way to making your case stronger. The court will be able to order disclosure of the material from the police you mention and if necessary ask for you to undertake a drugs test, although I note that you are having contact which I presume is unsupervised - which you can point out suggests that you are not a huge risk to your daughter.
It is true that your daughter has lived with her grandparents for a long time and this will be a powerful factor in her grandparents’ favour. They will undoubtedly be her primary attachment. However, that does not necessarily mean that she could not come and live with you or at least spend much more time with you. Generally speaking the law favours children living with parents if this is possible. Here is some helpful law on the point:
Although the welfare checklist is neutral as regards applications made by parents compared to those made by non-parents, courts use the ‘needs’ factor to give effect to the principle that a child should be brought up, if possible, by a parent as opposed to a non-parent.
In Re KD (A Minor) (Access: Principles)  2 FLR 139, at 153, Lord Oliver of Aylmerton emphasised:
‘... the single common concept that the natural bond and relationship between parent and child gives rise to universally recognised norms which ought not to be gratuitously interfered with and which, if interfered with at all, ought to be so only if the welfare of the child dictates it.’
In his speech, Lord Templeman said (at 141):
‘It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered. Public authorities cannot improve on nature.’
These statements were later applied by the Court of Appeal in a private law residence case (Re K (A Minor) (Custody))  2 FLR 64. The Court of Appeal granted a father’s appeal against a refusal to make a residence order in his favour in respect of his 4 ½ year old son who had been living with his maternal aunt for a year, his mother having died:
‘The speeches in the House of Lords [in Re KD (A Minor) (Access: Principles)] make it plain that the term “parental right” is not there used in any proprietary sense, but rather as describing the right of every child, as part of its general welfare, to have the ties of nature maintained wherever possible with the parents who gave it life.
... [The trial] judge proceeded ... as though the question before him had been: which claimant will provide the better home? The question he ought of course to have been asking was: are there any compelling factors which require me to override the prima facie right of this child to an upbringing by its surviving natural parent?
[His] approach led him to embark upon a careful and detailed assessment of the merits of the two competing households with a view to deciding in which of them R would have a better prospect of achieving a sense of security and stability, qualities, certainly, which he will badly need after his sufferings. That comparative exercise was conscientiously undertaken and involved the most careful weighing of minutiae such as the age differences between the parties, of imponderables such as the father’s future marriage prospects, and even of wholly unknown quantities such as the emotional effect of a change of primary carer, which the judge undertook, in the absence of any medical or psychiatric evidence one way or the other. It was, despite its thoroughness, an exercise misconceived in law.’ (at para 70)
Notwithstanding this, the welfare test governs any decision about the future residence of the child regardless of whether both the contesting parties are the parents of the child or not. In Re G (Children)  UKHL 43,  2 FLR 629, at  Baroness Hale of Richmond emphasised that the statutory position is plain: the welfare of the child is the paramount consideration:
‘As the Law Commission explained, “the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child” or, as Lord MacDermott put it, in [J v C213] the claims and wishes of parents “can be capable of ministering to the total welfare of the child in a special way”.
Lord Scott of Foscote agreed:
‘Thorpe LJ [in the Court of Appeal] failed to give the gestational, biological and psychological relationship between [their mother] and the girls the weight that that relationship deserved. Mothers are special…’ (at 3)
Lord Nicholls of Birkenhead observed:
‘In this case the dispute is not between two biological parents. The present unhappy dispute is between the children’s mother and her former partner ... In this case, as in all cases concerning the upbringing of children, the court seeks to identify the course which is in the best interests of the children. Their welfare is the court’s paramount consideration. In reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child’s best interests, both in the short term and also, and importantly, in the longer term. I decry any tendency to diminish the significance of this factor.’ (at 2)
If Article 8 of the European Convention on Human Rights means anything, it means the right to family life between a parent and a child.
As an additional reminder of the general principle, the Court may consider it appropriate to note that the United Nations Convention on the Rights of the Child at Article 7 states (my emphasis):
‘1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.’
Nothing cited above is intended to derogate from the general principle that it is the child’s welfare, pursuant to section 1 of the Children Act 1989, that is the Court’s paramount consideration.
As I hope is made clear from what I have set out above, ultimately it is the child’s welfare that is the Court’s guiding principle but generally that includes the idea that if possible a child should be with a parent. I have said more about the welfare checklist here. When you write a statement you should make clear why you think it is in your daughter’s best interests to live with you.
The fact that you work and therefore would rely on a nursery placement should not really make much difference to the strength of your case. The courts do not generalise parents for working. It may be worth getting a statement from your employer if s/he can say that you are reliable and have not had any issue with drugs etc. Perhaps they will confirm that they will be flexible regarding child care arrangements etc? However, your daughter would need to maintain a relationship with her grandparents (and siblings) in any event, so your suggestion is a sensible one, within reason. Perhaps a mix of some time in nursery and some time with her grandparents? Also you will need to set out what you think about your daughter having contact with their mother, and in what circumstances.
Do not forget to include a ‘fall back’ position. If your daughter does not come and live with you all the time, when can she spend time with you? People often say ‘as much as possible’ which is understandable but try to be more specific. Do you have Parental Responsibility? If not, don’t forget to make clear you would like it. This should be almost automatic given the contact you are having.
It is a good idea to get statements (not letters) from the parents of your other children setting out what they have to say about you as a father.
You will have to explain, in detail, why you have not applied for residence before hand. If the grandparents have not applied for residence yet, consider whether you should make an application first.
The key will be to set out your case as honestly and openly as you can, in writing, from the very start. The first statement you file should be full and contain as much relevant detail as possible (but not ramble). Cases are often won and lost on paper and what is said at the start can shape the whole case. There is more detail about writing statements here. Also you can download a template for a statement that is sometimes used in Liverpool County Court by clicking here. It is in ‘Word’ format. You might need to adapt it a bit but it will help you with the structure.
There is some more advice on representing yourself on the other website I run here. In particular take a look at the “Notes for Self Represented Parties” document on that page.
Finally, take a look at my “Do I Need a Lawyer” page. I note that you are working. If you can afford it, you might want to consider getting some help from a lawyer, even if not for the whole case. That and subsequent pages contain advice on ways to control the cost etc. There is much at stake and this will in all likelihood be your best opportunity for your daughter to live with you.
Hope this is helpful and good luck.
I have been in the pre-proceedings procedure with social services. I have been involved with Social Services since 2010 due to allegations of domestic violence. Last year I had a very bad accident were I was in hospital for 7 weeks so my 3 children were put on a plan. Everything was going well I'm a recovering alcoholic 9 months and I was diagnosed with Borderline Personality Disorder in April last year. Since being diagnosed there have been no police call outs and things were going well. On 13 December 2013 my partner stayed at my house for the night. We both had a drink my partner had shandy and I had 2 cans of cider. we had an unannounced visit the next day at 10-15 am. On Monday the 16th December I had to go to the social services office who have told me I was in breach of the agreement because I had consumed alcohol. I had to sign a section 20 agreement and my children have been taken to live at their paternal grandparents. I have to have supervised visits until it goes to court . I would like some advice I desperately need my children home. I am a completely different person since I was diagnosed with Bipolar Personality Disorder and put on the correct medication. I also go to my local alcohol services and I'm abstinent. I had a lapse, not a relapse.
The first things to say is this - go and see a solicitor. I do not know what area you are from, but you need to find a solicitor who is experienced in dealing with ‘Public Law’ (i.e. Care Cases). These cases still receive Legal Aid and it is vital that you get a solicitor on board as soon as possible.
They will be able to do a number of things, including, arranging for you to have hair strand alcohol testing to show whether you have been drinking and to get reports from the organisation you have been getting help from.
‘Section 20’ means section 20 of the Children Act 1989. It means that you give your consent to the children being ‘looked after’ or provided with care by the local authority. They have clearly decided to place your children with their grandparents. Strictly speaking you can get them back at any time unless the Local Authority have an order from the court (such as an interim care order) as they are not allowed to keep them without your agreement. I am not suggesting that you withdraw your consent without speaking to a solicitor first, however if the local authority are delaying in getting the matter before the Court sometimes solicitors with threaten to withdraw consent so as to force the local authority to issue their application and get the matter in front of the court. This is a ‘tactical’ decision that you must discuss with a lawyer as sometimes threatening to withdraw consent can be the wrong thing to do.
Sometimes it is a good idea not to withdraw consent as nowadays care proceedings are being completed within a short period of time (26 weeks) so it can be helpful to have a long period before it goes to court so that a parent can show, for example, that they have not been drinking. However you must discuss all these issues with a solicitor.
In the mean time, make sure you attend every and all contact (no excuses) with the children and make sure that the contact is really good for the children. Do not discuss any of the issues in your case in front of them or say things that might make them feel worse about being away from you at the moment. Keep all the appointments that any social worker makes with you and keep attending any supportive organisations you are engaging with. Above all do not let the currently awful situation lead you to drink alcohol. I suspect that whether a Court will allow your children to return to your care will depend on a number of things including whether you drink alcohol again and how well you co-operate with social services and other agencies.
Sorry to bang on about it, but above all, go and see a solicitor. Now.
After my daughter’s father taking me to court to see our daughter he was awarded parenteral responsibility only with indirect contact via letter emails once a month. The final hearing was September. Our daughter hasn't had anything from her father. The only thing he has done is contact school to have a meeting regarding her education. He also told school that if its alright with them he would like to come and watch her in her plays. I do not think this would be a good idea as our daughter would be very distressed if she saw him. Now I’m considering going back to court and seeing if I could have the parental responsibility taken away. Where would I stand and would I have to pay for it myself?
It is very difficult to get rid of or ‘revoke’ Parental Responsibility (PR) once it has been given.
A parental responsibility order can be revoked by the court on an application made by any person who has parental responsibility or, with leave of the court, by the child him or herself.
Although the test to be applied is the s 1 ‘welfare test’ getting such an order requires considerable justification. In Re P (Terminating Parental Responsibility)  1 FLR 1048 the Court terminated a parental responsibility agreement in circumstances in which a father was convicted of causing serious injury to his 9-week-old daughter. The Court held that parental responsibility, once obtained, should not be terminated on less than solid grounds, with a presumption for continuance rather than termination.
In Re DW [2013 EWHC 854 (Fam) the Court terminated PR when a father had been sexually abusing the child concerned.
This gives you an idea of the type of things that are required. It is very unlikely that what you describe would be sufficient.
As with all such cases nowadays, I’m afraid legal aid is no longer available, meaning at the very least you would have to pay the Court fees yourself (unless you qualify for an exemption) and if you wanted to be represented you would have to pay a solicitor or barrister to do that.
My advice would be to show the school the order that has been made and make it clear that the court did not consider it appropriate for him to be having direct (face to face) contact with his daughter and explain what your concerns are if she accidentally met him.
You might have grounds for an injunction against him but I stress that is only a possibility. You would need to seek legal advice if the suggestion I make above does not help the situation.
My ex partner who I lived with for several years and I have broken up.
I left him in January 2013 as he looked after our 9 month old son stoned on cannabis. He has a 20 year plus history with drugs, got thrown out of home at 16 etc I could go on, but when he met me he tried to turn his life around and at the time believed him. But not anymore. Our child is now 17 months. He was stoned from the moment I was pregnant till I left, 18 months in total, always sorry always saying it would stop, he saw a doctor, got patches, saw a hypnotist twice, typical addict behaviour. He is in denial of his addiction. Eventually pushed he went to an addiction group in February 2013 which he has been attending on and off since then, he lies, is sneaky, can't be trusted, hostile, insular, anti social, edgy mostly.
I went back in March 2013 to try again as I didn't want a broken family but left in July 2013 for good as could not seeing the relationship working out and wanted a better life for myself and my son.
He is now taking me to court as he is denial of my concerns and addiction and can't be trusted, I'm allowing access (contact) but won't allow him to take our son to his house for fortnightly weekend access as I have strong concerns re his responsibility and addiction as he stops and starts a lot and am concerned for my sons welfare. I want him to do a hair test to show he's ok. He will only do this if the judge tells him to but not because I've asked him too he has told me and thinks I will grant access in the pre court mediation next month.
I want him to be in our sons life and for us to both be positive role models and friends for our sons sake.
He is addicted, he smokes daily , was putting himself in dangerous situations all the time i.e. he would drive a heavy goods van under the influence, go up ladders, drive his motorbike etc. always stating things like but I never crashed, or got stopped etc. I especially think he has gone back to it even more now I've left.
I was going to represent myself but am now seeing a solicitor this week to do that, I have tried to reason with outside of court and say this will be no good for any of us but he is impossible to deal with.
The first thing to say is that mediation cannot impose any form of agreement on you or him. That is not to say it is pointless, and the mediator will help both of you express the concerns each of you have and will see if any agreement can be reached. However, if you do not agree, the mediator cannot impose or force either of you into a certain course of action.
If you cannot agree anything in mediation, the matter will go to court.
My approach would be to put down in writing your concerns as clearly as possible as soon as possible in a statement for the court. I write another website called www.mfjc.co.uk which is for the Merseyside and Cheshire Area. In our area we are trying a scheme whereby people file statement very early on and there is a template. If you click on this link here you can download the template from that website. It sets out headings for the sort of things the court wants to know when people make applications for contact, and helps people put them in order. You may find it helpful. If you are getting a solicitor it may be helpful to fill it in and give it to them so they can turn it into a statement for the court you may be going to.
The important things it to make clear not only what your assertions are about him using drugs but also what effect that has and what you contend the risks are. Some specific examples, if you have some, of things that have happened in the past would be helpful. I emphasis this because drug use is so endemic in society that the important point is not necessarily that someone is using drugs (many parents do recreationally and still adequately parent children) but the fact that the drug use has a negative effect on a parent’s ability to safely care for a child (see for example the NSPCC website here.)
In relation to drug testing the court can order that, however it costs money and usually the Court will order that the cost is shared between both parties, now that legal aid has gone. The more drugs you test for, the more money it costs. The further back you go in time, the more money it costs. It can be ‘segmented’ on a monthly basis (to see if consumption has increased or reduced) but again, this involves an extra charge. As a very rough guide one test for the 5 most popular illegal drugs, for six months (unsegmented) costs in the region of £500 (i.e. £250 each parent), although this may vary considerably.
For that reason it is very important to be clear about what you want him to be tested for. If he denies use or seriously underplays the amount he uses, you may be able to argue that he should pay all the cost if it turns out that he was lying - but I would not bank on it.
You describe a serious problem on his part. For that reason it may be worth asking the court to order him to provide his medical records and details of his attendance and engagement at the addiction group you refer to (i.e. a report from them).
You have acted appropriately. Allowing him some contact but making sure it is safe is much better than letting him have no contact at all. From what you have said I suspect a court will be slow to entrust him with the care of your 17 months old son for extended periods without him first dealing with his difficulties.
I have spent nearly two years fighting to have a meaningful relationship with my daughter. I have always supported her financially.
My name was not put on the birth certificate I have no Parental Responsibility, I filed all my c1 and c100 form and found myself going to court on at least 6 occasion now, and have a really bad experience. I am not without fault I did a stupid thing and on the odd occasion I took cocaine on a stag do, although this is very rare and I have not taken any for over 13 m when my hair was tested it still had very small traces of this drug in my hair, just above the cut-off point. I have never had any drug conviction or alcohol related issues ever. I really do not know why it’s still positive other than things I have read which state substance can stay in your body for up to 18 months there are some valid reasons i.e. I've antibiotic in the last 6 months.
But now my Cafcass report says they recommend I only see my daughter at a contact centre. I have a good job I am customer facing own my own house and brought my 23 year old son up on my own for 11 years.
Also my contact report in which I had to have 6 sessions with my daughter was glowing. Mum keeps our daughter locked away with not much contact with anyone so she now cannot leave her mum’s side.
This is a difficult if common situation and there are a number of related issues.
First, I understand your frustration at the slow way in which family proceedings sometimes progress and it becomes even more frustrating when it feels like everyone in the system is against you.
There are two factors at play here. One is the drug test result and the other is the Cafcass recommendation. They will be linked.
It might be best to start first with the Cafcass recommendation. You tell me that it recommends supervised contact in a contact centre. Such facilities are in short supply and it is unlikely that the recommendation will be a long term one. You should see it as a steppingstone to more natural contact as the contact centre will only be available for a time limited period. It is in fact almost always a sign that the Cafcass officer thinks it likely the contact should move on at some stage, otherwise there would be no point in recommending it.
It is also important to understand the purpose of that contact, which will most likely be to ensure that your daughter is used to being in your company and comfortable with you. The Cafcass officer might also be thinking that mum needs reassurance that you are committed. I am guessing from what you have said that until recently you saw your daughter infrequently. Don’t forget that what is happening now is meant to be the foundation for a life-long relationship and therefore 3 or 6 months of contact centre sessions may seem like ages now but measured against the rest of your daughter’s minority, in a year or two’s time will be a distant memory.
Your aim during this period must be to always go (come what may), always be on time and always make it the best time for your daughter it can possibly be, however difficult it is. If you can do this, you will have a strong argument for saying that the contact should progress, first away from the contact centre and then to overnight contact etc.
In relation to the drugs test, there is not much I can say other than get another test in a few months time. The hair can be segmented roughly by month (although this costs more) and make sure you take the full details of any prescription drugs you are taking with you, so the testing company can exclude them. I have personally been involved in a case where the drug test result was subsequently proved to be inaccurate, but they are extremely rare. Courts are not, I am afraid, consistent in their approach to drugs. Some courts would virtually ignore a ‘low’ result as a bit of recreational use which is fairly endemic in society and unlikely to have an impact on the child. Others regard it as almost totally inconsistent with child-rearing.
Finally, you talk about mum being possessive with respect to your daughter. It is not uncommon for a parent who is the primary carer to feel like this, especially if they have managed to have a period of time when you have been absent, even if they are wholly or partly to blame for that absence. It often comes from fear: fear that you may do something stupid or irresponsible while she’s with you, fear you have not changed since she knew you (and the fact that you are no longer together means she probably has a very dim view of you), fear that their child may end up loving you more than them… you get the idea.
She is your daughter’s mum and whether her fears are rational, irrational or even fabricated because she just does not want you to be in her or her daughter’s life, the fact that your daughter spends most of her time with her means that she is, I’m afraid, in the driving seat. You can take a number of approaches from doing everything you can to reassure her that her fears will not come true to coming out all guns blazing and argue every point. The trouble with the former approach is it can leave you feeling as if the process is unfair and one-sided. The trouble with the latter option is that she has the ability to knowingly or unwittingly sabotage your relationship with your daughter. The type of approach to take depends on many factors but I would always try mostly the former - in the long term it tends to work out better, in my experience.
It may be worth you setting out in a statement, in a reasonable, measured way the way in which you feel. When you have and have not used drugs, what reassurances you can give your daughter’s mother and what you wish to achieve.
Having said all of that, the Court should help you have and maintain a relationship with your daughter. There is nothing in what you have told me so far that would make me think your case is hopeless, in fact far from it. You must persevere and do not give up. You will get there.
Also, if you have been attending contact regularly and it has been going well, you have a very strong case for having Parental Responsibility.
Oh, and do not, ever, take illegal drugs again...
|Question Asked by MM|
It is very likely.
The court will want to be satisfied that things have changed in your life. If there was a time in your life when you were suffering from depression and were drinking too much, the court is likely to want evidence that these things have changed. If you have not seen your children in a while, it might indicate that the difficulties were serious. In those circumstances I think a court is likely to want to see evidence that you no longer use alcohol inappropriately. This could be by way of alcohol testing. The court might also ask to see your medical records (which also means the children’s father is likely to see them) as they often show whether someone has regained stability in their life or continues to have problems.
If you have received support or counselling in relation to alcohol issues and/or depression, it may be worth getting something from whichever service provided you with help, confirming your engagement and progress.
Finally, if it has been a while since the children have seen you, the Court may ask a CAFCASS officer to speak to the children about how they feel having contact with you as it will be a big change for them.
In summary, I am saying that it is likely that a court would conduct a thorough investigation of your circumstances and this is likely to include testing.
Having said all of that generally speaking a court would want children to have a relationship with their mother as this would normally be in their interests even if there has been a gap or there were previous problems. Of course this will depend upon what is best for the children and each case depends upon the individual circumstances of the parents and most importantly, the children.
I have written a page on Drug and Alcohol testing here which might be helpful.
|Question sent in by JM.|
|Question sent in by Kathleen|
1. I have an indirect contact order but it only states not less than twice a year, it does not state what contact methods I am allowed to make, my son is under a Special Guardianship Order and I have never got on with them in the past. If I send a card could they prevent my son from receiving it? Should the order state how my indirect contact should take place?
2. My partner has a contact order but that only states contact no less than every six weeks, it is supervised but the order does not state that, again the question is should the order clearly state type of contact? If it should how do we get this put in place?
What is Indirect Contact?
There is no definition of indirect contact in the Children Act 1989. It is a short way used by the Family Courts of describing contact that is usually something less than face-to-face. Most often it means in reality cards or letters and sometimes small gifts (e.g. a low value gift token). Sometimes other forms of contact are described as ‘indirect’ for example telephone, email or text etc. However, when you think about it, they are really a direct form of contact in the sense that there is ‘real time’ or close to real time conversation. I have little doubt that the order does not mean this type of contact as I have never had experience of a case where a Court means telephone etc contact without being very clear on the order that this is what is envisaged.
In my experience cards are often preferable to letters, especially if you are able to get a card which relates to something you know your son likes, depending on his age. Again speaking generally, it is wise to keep the message in the cards relatively short and free from language that is likely to bring about strong emotions either in your son or his carers, although I appreciate how difficult this is. Also, as difficult as it may be, it is often better to say something that is supportive of the people he is now living with. It is often the case that indirect contact is stopped by carers (or simply not given to the child) because they perceive it, sometimes correctly, as a way of the non-resident parent trying to change the child’s mind about where they are living. Comments designed to do this always backfire. Your cards/letters are much more likely to be given to your son if you refrain from saying anything negative about his carers and, if you can, make a brief positive reference to them. This will also mean that your son is less likely to feel ‘guilty’ about wanting to read them.
I also appreciate how difficult indirect contact is. Many clients have described to me how it feels soul destroying sending a card, not knowing whether it will be given to your child and not knowing his or her reaction, with very little or no feedback. However, it is worthwhile keeping in mind that you will always be your son’s father and that as he grows older it is very likely he will be very grateful for the effort you put in at this stage to keep in touch with him and to show him that whatever the reason for him not living with you, you still love him. My experience and indeed research shows that the vast majority of children who are cared for by people other than their parents often make contact with their parents as they grow older (although that is a whole other post).
What guarantee is there your son will get the cards?
The short answer is, very little. The Court will expect that your son’s carers will let him read them and let him keep them (providing they are appropriate). The Court will expect your son’s carers to give them to him in a ‘positive’ way and also in all likelihood encourage him to reply, at least with a ‘thank you’ card or letter (depending on his age). I know that in reality and for all sorts of reasons this often does not happen.
My best advice is to try as hard as you can to build bridges with your son’s carers, slowly and one step at a time. You could, for example, send them a short letter with the card for your son asking them to pass the card on and explaining how you would be happy for them to read it first to make sure they are happy with the contents. After that, you might consider telling them that you will do nothing to upset his place living with them and if they were able it would be helpful to have confirmation that the card was given to him. For whatever reason and whether you agree with it or not a Court has decided that your son should be cared for by them under a Special Guardianship Order. This usually means that it was the Court’s intention that your son should remain living with them for the foreseeable future. Remember that they love him and have probably changed their lives considerably to be looking after him. They will feel threatened by you because they will know that whatever else is true, you are ‘dad’ and no one else can replace you. A ‘softly softly’ approach is usually more productive.
What about applying to Court?
It is only worth applying to Court to change the contact order in some way if you are sure that this will make the situation better for you and, most importantly, your son. You can safely assume that the order really means that you can send an appropriate card or letter at least twice per year (but not too often), that the carers are expected to give to your son what you send and let him keep them. Many Judges would think it would be right for a child to be encouraged to send some sort of response either directly from the child or on the child’s behalf (depending on age). If you do not think this is happening then it may be worth making an application although you should think about it very carefully. The carers may take this as an ‘attack’ on them. A Court is likely to think that the most important thing for your son is that he is safe, secure and stable with his current carers. If you upset them by dragging them back to court without good reason you may end up with less than you had in the first place. I would not make an application until you have sent at least a couple of appropriate cards as I have suggested above, to show that you are committed to your son and the contact you have with him. I would suggest sending them ‘Recorded Delivery’ so that you can prove that they have been sent and received.
If you decide to apply to court, you will need to make an application for a contact order under section 8 of The Children Act 1989 - have a look at the ‘Making an Application’ page of this website, which has details of the forms you will need to fill in. You will not get legal aid to do this, although you may get legal aid to pay for mediation, which would be triggered by your application. It may be that you could come to some arrangement which is more specific than the current order through mediation.
Special Guardianship Orders and Contact?
Your partner has an order for contact no less than once every six weeks. It seems like the Court has left the mechanics of how this should happen to the Special Guardians. As they are Special Guardians they have Parental Responsibility (PR) which they can exercise ‘to the exclusion’ of everyone else with PR (generally the parents). The fact that the order is silent about how the contact takes place makes me think that the Court had in mind that it would be left up to the Special Guardians, although there might be something in the papers that were presented to the Court before the Special Guardianship Order was made which indicates what was being suggested at the time or what was expected to happen.
The same considerations about making an application apply to your partner as apply to you. If she is unhappy about the reality of the contact that is taking place then the first thing she could do is talk to the Special Guardians, again being careful to make it clear that she is not looking to upset your son or his carers.
My ex-partner has applied for access [contact] with our child, who is 3 years old and we are due in Court soon. I do not want him to have access because he uses all sorts of drugs. What can I do?
Generally the Court will take the view that drugs and children do not mix, especially Class A drugs (cocaine, heroin etc). Attitudes to cannabis vary and occasional use may not be considered fatal to a contact application but most judges do not ‘approve’ of any illegal drug use. This does not necessarily mean that the Court will not order some form of contact (see below).
The first stage is to be clear about what you are saying. What type of drug(s) do you allege he uses? Be clear to the Court about what you and saying and on what basis you are alleging it. He may admit drug use or he may deny it.
If he denies it, or says that it is only very rare, social use etc and you do not agree, the you have the option of asking for testing.
The Court can order drug testing. This usually takes the form of what is called a ‘hair strand test’ which is where a clump of head (or body hair) is taken from the person being tested and broken into segments which represent months. Each segment is tested and the results indicate drug use during that month. So, for example, you can ask for testing to determine drug use in the last three or six months.
The cost of the testing depends upon two things - how much hair is tested (i.e. how many months the test goes back) and what drugs are being looked for e.g. just cocaine or cannabis or all possibilities. This is why it is important to be clear as to what you are alleging the use is and what your evidence for that use is. There is no point in testing for all drugs if in fact you are only saying he uses cocaine at weekends when he goes out with his mates.
Drug testing is very expensive. A test for all drugs going back six months usually costs over £1000. If you have the benefit of legal aid this may be paid for by your legal aid. However, if you are not legally aided and/or he is not, the Court has the option of deciding who pays for it. As legal aid disappears drug tests will become rarer. I also think it is likely, although I do not know for certain, that the Courts will have to think much more carefully about assigning the costs. If for example, someone alleges that their ex-partner is using drugs and they are tested and it turns out that they have not been using drugs, the Court may say that the person who made the incorrect allegation has to pay. Likewise if someone denies drug use and it turns out that they have been using drugs, then it may be that the Court makes them pay fro the whole cost of the testing. Up until now it has usually been the case that the cost is shared between the adults in the case (usually mum and dad) but I suspect this will change.
There are some ‘free’ possibilities. Have a look at the ‘Drugs and Alcohol Testing’ page on this website.
The drug test will give an indication of how heavy the drug use has been, although these indications are only guidelines.
There are some products that claim to ‘wash out’ drug use from hair. I am currently involved in a case in the High Court that is examining the science of hair strand testing and the general scientific evidence is that these products make little difference.
Drugs and Contact
Does illegal drug use mean he should not have contact? This depends upon what drug(s) he is using and how much. The Court will want to know that the child is safe in his care. It is very difficult to be prescriptive about this but common sense tells you that with the prevalence of illegal drug use if the Courts did not allow any contact between all parents who used any drugs whatsoever then there would be a massive increase in the number of children in care. Really it depends upon the impact of that drug use on the ability of the person to provide safe and appropriate care for a child during the time that he or she is seeing the child coupled with the Court’s assessment of that person’s attitude.
Often a Court will allow contact at a contact centre in the interim period and give the person some time to end their drug use. A serious long standing drugs addiction is very likely to be a bar to contact taking place in the long term.
It is also important not to be hypercritical about it. If someone thinks that their ex-partner uses drugs because when they were together they both used to go out every Saturday and indulge but now they are claiming the moral high ground, the Court is not going to be too impressed.
Further information on drug (and alcohol) testing is given on the ‘Drugs and Alcohol Testing’ page on this website together with information about drug and alcohol support services.
Is it true that the Government is introducing a proposal for shared/equal Parenting that means children will spend equal time with both parents as of right?
No. I have read many articles in the press that seem to imply this or that there is some massive change in the law coming, for example this one from the Daily Mail, proclaiming a legal right for separated children to see parents. I worry that this creates a false impression.
There is a Bill going through Parliament called the Children and Families Bill. It does add something to The Children Act 1989 which I will explain below. However, it does not represent a massive change in the law. The reality is that other measures the government has introduced (cutting legal aid for parents) and what the Bill does not do (beef up the Court’s ability to make parents obey Court orders) means that, in my view, the overall effect will be that fewer separated parents (often fathers) will see their children.
A combination of The Human Rights Act (Article 8 - Right to Family Life) and the case law that has developed in this area has always meant that Courts do their best enable both parents to see their children. Of course, seeing a child is completely different to sharing or equal parenting.
This is what the proposed legislation will add to The Children Act 1989:
That is subject to the following exception:
“A court is … to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare … if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm.”
“ … unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.”
There are a number of points to be made about this proposal:
- It is arguable that it does not change the law at all and is in fact exactly what Family Courts do at the moment;
- “Involvement” can mean anything e.g. as little as telephone calls and as much as equal time spent with the children;
- The wording “some evidence” is shoddy drafting, in my opinion. I know what it is getting at, but I think it could be better spelt out;
- Some people argue that the requirement to look at the Child’s Welfare contains all of this in any event and that this addition undermines the idea that the court should take decisions based solely on what is best for the children concerned (I don’t think it does, but there we go).
So all in all I’m afraid I think it will change very little but is being spun as some great advance. It falls far short of shared parenting and has nothing to do with parents spending equal time with their children.
Have a look at the “Access or Contact” pages to see more detail on how Court’s make decisions about about parents seeing children at the moment.
My ex-boyfriend says he has Parental Responsibility for our son and that I can’t cut his hair without getting his permission? Can this possibly be right?
No. I deal with who has and does not have Parental Responsibility on my page “Parental Responsibility” here. If his name is on the birth certificate and he your son was born after 1st December 2003 then he will have Parental Responsibility, but have a look at the page for more possibilities.
The best way to define what PR means is to give some examples. If you have PR you are entitled to be consulted about important life decisions concerning your child. For example:
- Where a child goes to school
- Significant medical procedures
- A child's name
- What religion a child follows or is taught
- Whether a child can go abroad
- Where a child lives
Note the word consulted. This is not the same as decide. If parents cannot agree on these issues it is sometimes necessary to get a Court to decide between the competing views.
However, it is also worth noting what PR does not entitle a parent to do. It does not entitle a parent to interfere in the day-to-day care arrangements for a child whilst they are in that parents' care. So for example someone with PR does not have to be consulted about:
- What the child wears
- What time the child goes to bed or eats a meal
- What a child eats
- Where that child goes on a day trip
- What the child watches on TV
That is not to say that good parents who have separated do not find a way to talk about all these things, and so they should. It just means that PR is not a license to tell the other parent how to look after a child every minute of the day.
An important part of PR is the ability to give consent to medical treatment (although this does not often hamper minor treatment and any major treatments should always involve consultation with the other parent).
Also if you have PR you have a legal right to ask schools and doctors to give you information about your child (e.g. school reports and medical records).
The responsibility part of PR is often forgotten. For example, a Court will often tell parents that it is part of their PR to make sure that the child sees the other parent!