Access or Contact to a Child

The Tabs below deal with various aspects relating to contact with a child and the Family Courts.
Enter the name for this tabbed section: Access or Contact to a Child

Access or Contact to a Child

I have started this page by referring to 'access' to a child because it is my experience that people still refer to seeing a child in terms of having access to the child.

However, The Children Act 1989 replaced the term 'access' with the term contact, and further changes are on the way. If you speak to someone involved in the family courts they will usually refer to contact as opposed to access. In general, it means any time that is spent with a child, be that face-to-face or through some other means (e.g. by letter, email, text, telephone etc). You can see how contact is defined by going to the "Contact and The Children Act" Tab above.

What can a Court do?

A Court can order a person to allow someone to have contact to a child. This power comes from The Children Act 1989 and in particular section 8 of the Children Act.

A typical Contact Order might read something like this:
"The mother shall make the Child Jonny Smith available for contact with his father as follows:

(i) During school term time from the end of the school day every Wednesday until 7pm;
(ii) During school term time every alternate Friday from the end of the school day until 7pm on Sunday;
(iii) During each school holiday for one half of the holiday."
The Contact Order might also set out where the child is to be collected and returned and other arrangements that have been put in place to allow for contact to take place between a child and someone else. Once the Court has made an order there are ways in which the Court can enforce that order i.e. make someone obey it.

How will the Court decide if contact should happen?

The Court will start from the from the point of view that the child's welfare is the most important thing. The is set out in the Children Act 1989 section 1, in what is often called the "Welfare Checklist". I have prepared a separate page which talks about this under the heading "The Child's Welfare".

It is possible to state some general principles that the Court is likely to apply when considering an application by a parent to have contact with their children.

Contact and the Law

1. In general the Court will consider that a child should spend time with both parents.

2. A Court will not stop a parent having contact with a child unless there is a very good reason for doing so.

3. A Court will do it's best to find a way of making contact happen.

4. The Court will not stop contact happening just because parents have different ideas about how to be a parent, unless one parent acts in such a way that the child would be caused real harm to the child by that contact taking place.

5. The Court will expect parents to put aside their dislike of each other and do their best to make sure a child has a relationship with both parents.

The Court will know that nobody is perfect. Little niggles or complaints about how the other parent behaves or acts as a parent will not persuade the Court that contact should not take place. Most judges will assume that if two adults decided to have a child together then they have to put up with the things about that person that they do not like (or do not like now that they have separated).

These are some examples of things that are very unlikely to stop a Court ordering contact to take place:

1. The other parent lets the child go to bed later than I do.
2. The other parents does not make the child do his home work.
3. The other parent does not give the child healthy food.
4. The other parent lets the child watch TV programmes I would not.
5. The other parent is not of the same religion as me.
6. The other parent has a new partner.
7. The other parent had an affair when we were together.
8. The other parent does not pay money to me to help look after the child.
9. The other parent is sometimes a bit late returning the child from contact.

Of course, it is all a matter of degree. We a parent to be allowing a 5 year old to watch "18" rated films during contact, it is likely a Court would take a very dim view of that - if it was satisfied that the allegation was true.

I have set out some examples of things that might persuade a Court to stop someone having contact with a child on the Tab "Reason to stop contact" above.

How much contact will a Court Order?

This is a much more difficult question to answer. In most cases a Court will order some contact but how much contact depends upon a lot of things.

In general, the Court will ask itself the question - what is best for this child? There is often no right answer.

There has been a lot of attention in the media recently about 'Shared Parenting', which implies that a child should spend equal time with each parent. I have even read articles suggesting that The Children and Families Bill (due to be put into effect in 2014) will introduce a presumption of equal time. This is an impression that the Government seems keen to promote. It is a lie. The Government is not introducing a presumption in favour of equal time or shared parenting. It will add to the Children Act a section that makes it clear that child should, unless there is good reason not to, have a relationship with both parents. This is far from shared parenting.

There is a general impression that Family Court's favour the mother. There is some truth in that, although I would word it slightly differently. I think that in general Family Court favours the parent with whom the child has previously spent most time. This is often the mother but not always. I am not saying this is the correct approach, but it is the general reality.

If parents have not been able to agree on the time the children spend with each parent, they tend to stay with the parent who cares for them on a day to day basis - which, like it or not, tends to be the parent who does not work or does not work full time. This immediately puts the other parent at a 'disadvantage' because they are not as available to do the day-to-day care for the children. Immediately after separation it is difficult to agree on things and a pattern develops where one parent does not see as much (or any) of the children. When the case gets to court a pattern has been established and one parent is fighting an up hill struggle to adjust the children's' routines so that they can have more time with the other parent. Generally speaking the Court will not make huge changes to a child's established routine overnight, so the other parent is left trying to increase things gradually.

This is why it is so important not to delay. Once a pattern is established it is hard to adjust that pattern and as hard as it is sometimes both parents must do everything they can to try to keep their relationship with their children up and running even when things between the adults are difficult. The children will thank you for it later if you can keep a civil tongue in your head and reach an agreement about the children early on.

If parents cannot agree on how much time a child should spend with each parent then the Court will impose it's own decision. It will apply the Welfare Checklist (see The Child's Welfare) and reach the best decision it can.

Do not forget, the Court will be more concerned with the quality of contact rather than the quantity of contact. My experience is that children tend to be more bothered about what happens when they are spending time with a parent than they are about how long they spend with a parent and it is the adults that obsess more about having the right or fair amount of contact.

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Enter the name for this tabbed section: Reason to Stop Contact

Reasons to Stop a Parent seeing a Child

I hesitate to write this section, as I would not want it to be seen as a check-list of allegations that can be made against there other parent in order to stop them seeing a child. However, it must always be remembered that any allegations that are made by one parent against the other must have been proved by the parent that is making the allegations.

A Court will not allow a child to spend time with someone whom the Court concludes it is not in best interest of the child to see. This usually means that the child would be likely to suffer physical or emotional harm because of the way that parent would be likely to act.

I am going to list some of the common reasons I have seen for contact not being given to a parent. It should always be remembered that the Court will do its best to make sure a child spends time with both parents and it is only in extreme circumstances that a Court will think it best that a child should have no contact with a parent.

Domestic Violence

If one parent has been violent towards the other and the Court is satisfied that the allegations are true, this can lead a court to conclude that it would not be in the child's best interests to have contact with the violent parent.

In looking at allegations of domestic violence and how they affect a child spending time with the other parent, the Court is likely to take into account the following things, in no particular order:

1. The degree of any violence.
2. Whether the person who was violent admits his or her behaviour (see below).
3. Whether the person who was violent has done anything to address his or her behaviour (for example attended a course designed to help them not act in the same way again).
4. The effect on the parent caring for the children of that violence.
5. Whether the children heard, saw or were involved in the violence.

There is no automatic bar to contact because there was domestic violence in a relationship but the Court's do take it very seriously.

It is very important to be honest about any violence that there has been in the past. A Court is unlikely to accept that someone has changed if they do not admit what they have done in the past. If you know allegations are true or largely true but you lie about it and the Court does not believe you, it is much more likely that a Court will say there should be no contact. If on the other hand you tell the truth about it and seek help (e.g. anger management) the Court is much more likely to order contact.

Likewise, if the Court concludes that someone has made up allegations of domestic violence in order to stop the other parent seeing the child, then you run the risk of the Court ordering that the child does not live with you because you have been shown to be a liar in an attempt to prevent a relationship with the other parent. The Court takes this very seriously as the child has 'a right' to have a relationship with both parents.

Child Abuse

If a Court is satisfied that one parent has abused any child (physically, sexually or emotionally) then it is very likely to consider that contact should not take place.

Accusing someone of abusing a child is a very serious thing and false allegations are very likely to result in the parent making a false allegation not retaining care of the child. A false allegation of abuse can be just as harmful to a child as actual abuse.

If you are genuinely of the view that your child has been abused you must contact social services or the NSPCC as soon as possible.

Alcohol and Drugs

If someone has a problem with alcohol and/or illegal drugs this can seriously affect a child in their care. The Court can order testing but it is expensive and it is very likely that both parents will have to pay for it.

Again, the court will consider the degree of any problem. A parent that has a glass of wine with a meal is not likely to be considered an alcoholic. Someone who cannot function without having a drink is and they are unlikely to be providing good care for a child they are looking after.

Rightly or wrongly a Court is unlikely to order substantial contact between a child and their parent if there is evidence that the parent uses illegal drugs, particularly Class A drugs. Generally the Court takes the view that children and drugs do not mix.

Children Coming to Harm in a Parent's Care

Accidents happen to the best of us. It is not necessarily the case that because a child bangs his head whilst someone is looking after him or her that the parent did anything wrong. The real question the Court will want to investigate is whether the harm the child came to is as a result of something the parent did wrong and whether it is likely to happen again. So for example, if a young child suffers an injury because he was left at home alone unsupervised, the Court will need some persuading that the parent appreciates what went wrong and how it could be prevented in the future. Parents who show themselves to be generally incompetent or reckless have a hard time getting substantial contact.

Slagging off the other parent

Sorry to be so blunt about it but this is in fact the most common thing that separated parents do and a common reason for contact being reduced or stopped. If a Court concludes that a parent cannot be nice about the other parent to the child then it will have real worries about that parent having contact with the child. This is because a child, generally speaking, loves both parents and it is extremely emotionally damaging for a child to hear or perceive that one parent hates the other. Children are the product of both parents and they soon come to understand that their mum and dad are part of them. If one parent constantly criticises or complains about the other parent, then in a round about way you are criticising the child.

The Court will take the view that parents who cannot leave their adult feelings out of the time they have with the children and cannot positively promote the other parent to the child is failing in a crucial parental duty.

The Child does not want to go

This is the trickiest one of all. The Court must take into account the views of any child that it is considering making a decision about (see "The Child's Welfare" and the Welfare Checklist set out on that page). However the Court will want to investigate why a child is saying they do not want to go to contact and will consider carefully the age and understanding of that child.

Often a child can pick up on the feelings of a parent and are influenced by them. This does not just mean that the parent says things directly that criticise the other parent. It can mean that the child picks up on more subtle signals (e.g. refusing to speak to the child about the other parent). Children get very good at telling parents what they want to hear, especially younger children. If I had a pound for every case I have done where both parents come to Court and say that their child has told them that the do not want to see the other parent, I could pay off my mortgage. Unless there is a very good and rational reason why a child does not want to go to contact a Court is unlikely just to accept a child saying that they do not want to go to see a parent.

Likewise a Court will consider it the job a parent to persuade a child to go to contact unless there are proven and substantial reason why the child should not go.

The best way I can explain it is through an example. As parents we all have a duty to persuade and sometimes compel children to do things they do not want to do because we think it is in their long term best interests. If a 7 year old says they do not want to go to school, good parents do not say "okay then, you don't have to go". A good parent will ask why and if there is a real problem will go and see the school to try to sort the problem out. More often than not there will be no particularly good justification and most parents would in those circumstances do everything they could to ensure the the child went to school. The court will take a similar approach to contact - a child that says he or she does not want to see another parent will not be made to if there is a good reason for them not wanting to go. Where there is no good reason the Court will expect the parent in whose care the child is to ensure that the child does go to contact.

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Enter the name for this tabbed section: Contact and The Children Act

Contact Orders and The Children Act 1989

The power for the Court to make a contact order comes from The Children Act 1989. Most law relating to children can be found in The Children Act 1989.

The power to make a Contact Order is found in section 8 of the Children Act. The relevant part says:

“a contact order” means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other;

Contact can mean face-to-face, for example a child spending time with a parent at weekends. It can also mean other 'indirect' forms of contact such as by letter, email, telephone, text etc.

You can see The Children Act 1989, and section 8 in particular, by clicking on the Government's legislation website.

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