Indirect Contact, Special Guardianship and unclear orders

Stephen asks two related questions:

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?

Answer:

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.


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