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Keeping Children and Parents in Contact since 1974
Contact With Your Child
The following could apply equally to men and women, but for convenience (and in line with actual outcomes) it assumes that the mother is resident with the children and the father is seeking contact.
Contents
Contact Denial
Interim Contact
Opposition to Contact
Types of Contact
Contact Denial
Week in and week out, fathers attending our meetings report that their former wife or partner is refusing to allow them contact with their child(ren).
Sometimes this is done to conceal a new relationship, or as a tactic in financial bargaining during a divorce, or because the arrangements are felt to be 'too irksome'. In other cases it is done out of malice, with one parent using the children to hurt their former partner. In far too many cases it is done after taking legal advice.
Contact denial can occur at any time. It is most shocking the first time it happens, often accompanying (and adding to) the pain of separation or divorce, but the potential for disrupting existing arrangements remains until the child becomes an adult.
It is important that contact denial is addressed at the earliest opportunity. As soon as it occurs, a letter should be sent to the mother requesting that contact be re-instated, with a warning that the alternative will be legal action. In an emergency it may be necessary to make an immediate application to the court.
Interim Contact
The grim reality of the court process is that it can be extremely slow. It may therefore be advisable to apply for 'interim contact'. This term is generally used to describe contact arrangements which are made pending a full court hearing. The alternative strategies of settling out of court or waiting for a full hearing may be seriously deficient for two main reasons:
- Delay. This may lead to the children not seeing the father in the interim, establishing a dangerous 'status quo' which can subsequently be exploited to the disadvantage of the father and the children.
- Denial of contact. This allows an obstructive mother the opportunity to alienate the children from their father during the intervening months. She may refuse any contact or say that she will only agree to supervised contact or the use of a Contact Centre.
The mother will not usually have to explain why she will only consider supervised contact or a Contact Centre at this stage. It is usually enough for her to resist contact, or 'allow' an hour of contact a week (or even month). This situation is all too frequently encountered.
Opposition to Contact
Three levels of difficulty in arranging contact follow from the mother's degree of opposition:
- No opposition
- Amount of contact opposed
- Principle of contact opposed
No opposition
Interim contact may be arranged co-operatively by parents themselves without any court appearance. This may have been brought about through their solicitors. Quite possibly a mother who is resisting a father's plans for overnight or 'staying' contact will agree that visiting contact should take place 'in the interim' before the court makes a decision on the father's application for staying contact. The different types of contact are outlined below.
Most fathers seeking an interim order will have already failed to agree with their ex-partner and are therefore looking for the court to order interim contact. The earliest point in the court process at which this can be done is known as a 'directions hearing'. Where there is some agreement a 'consent order' may be made.
Amount of contact opposed
The court will normally want to establish some minimal arrangement for interim contact. This is much easier when the mother is not refusing contact completely. She may be disputing the duration of contact or a proposal for staying contact.
The court may need to be reminded of the likely delay (sometimes six months) before a full hearing, and of the difficulties for the child in re-starting contact after such a period. In this situation the court may order very limited contact just to keep contact 'ticking over'.
Even though the child may already be enjoying quite lengthy periods of visiting contact, the mother may refuse to countenance staying contact. It is also common, in response to the father making a court application, for contact to be stopped completely. Reasons for doing this may include:
- to intimidate the father into dropping his application
- to show him who controls the situation
- to reduce the base from which the father must work
The father should argue firmly in court that interim contact of the same 'quantum' as existed prior to the disruption should be ordered. The presumption should be that contact continues pending a full hearing, unless some prima facie evidence that the children need protecting is presented.
However, courts often order very meagre interim contact in these situations. The mother's reservations may have some validity, so the court generally errs on the side of caution.
The court will seek to establish that the mother is not opposed to all contact, and may ask her what level of contact she considers suitable for the interim. The mother may insist that contact take place in a Contact Centre or under supervision, even though she has previously expressed no reservations about the father's parenting. It is often enough for her to say that she will only countenance contact under these conditions for the judge to order it - the degree to which court orders match the mother's stipulations can be remarkable.
Principle of contact opposed
Many mothers oppose all attempts to establish contact. The mother's response to your application for contact may be that 'any contact will be against the best interests of the child'. In such cases - almost without exception - the mother has already taken matters into her own hands and stopped contact.
Faced with this, the judge does not have the freedom to order interim contact even if he believes the mother's position is untenable; he is bound by precedents, by previous judgements in the Court of Appeal which have interpreted the law. The old adage 'possession is nine-tenths of the law' applies equally to children.
Precedent
Judge Wall, sitting in the Family Division on a mother's appeal from magistrates' decision to grant interim contact to a father, has reviewed the position in his judgement (see Family Law Reports (1995) 1 FLR 495).
The headnote to this judgement reports:
"The guiding principle remained the application of the welfare test to the practical facts of the case. The fact that the need to re-establish contact was in the interests of the child did not mean that the court would necessarily make an offer for interim contact. The elementary question had to be asked as to whether it was in the child's interests for there to be an interim order for contact pending a final determination of that question. The greatest care had to be taken in making an interim order and without hearing oral evidence, to ensure that it was in the interests of the child and that the order did not prejudice the issue. It was difficult to envisage circumstances in which an interim order for contact could properly be made where the principle of contact was genuinely in dispute and where there were substantial factual issues relating to a child which were unresolved without the court hearing oral evidence or having the advice of an expert such as a court welfare officer."
It should be noted that in Judge Wall's judgement 'and' rather than 'or' has been used to combine disputed principle of contact and factual issues; both conditions must be met before the situation described comes into force.
Arguments to show that it is 'in the child's interests' for an interim order for contact to be made can be constructed in most instances.
Procedure
If you propose to argue for interim contact at the directions hearing it is best to warn both the court and the opposing solicitor. If you do not warn the court you may experience hostility or simple rejection of your request. The court will not have allocated time for the taking of oral evidence under oath.
If you fail to warn the opposition that you will be asking the court to consider taking minimal oral evidence so that interim contact can be ordered they will not prepare a case, and they may even send a junior or an agent rather than a competent advocate. Their failure would not be your gain, since the absence of notice would provide them with a reason for requesting an adjournment or that a formal directions hearing goes ahead without the matter of interim contact being considered. Possibly they would also seek costs against you for the extra court appearance any adjournment would necessitate.
It is important to argue against any court which may believe that ordering interim contact will prejudge the issue. By the same token, refusing interim contact is prejudging the issue since this decision initially gives credibility to the parent seeking to deny contact.
The potential consequences of stopping contact, or reducing contact to a matter of hours per month in a supervised environment, are so enormous for the children's long-term relationship with their father that when such steps are to be considered the court should make some sketchy examination of the facts.
The history of staying contact would be important when considering whether to order interim staying contact. A record of regular and successful contact - photographs can be particularly helpful - is a powerful argument for contact continuing 'in the interim'.
Types of Contact
Contact is the right of a child (see M v. M [1973] 2 All ER 81). There is no fundamental parental right of contact in the human rights sense, as any right of contact is always subject to the welfare of the child. The non-residential parent can apply under Section 8 of the Children Act for a contact order which is:
"An order requiring the person with whom the 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."
Direct Contact
This involves the child being together with the parent. This may be either visiting or staying.
Visiting Contact
This takes place at the address where the father is living. This may range from the former domestic residence, a bedsit, the grandparents home or a temporary bed and breakfast accommodation.
Staying Contact
Where the child actually stays overnight with the non-resident parent. There is a 'tariff' set by the court welfare officers as to the maximum amount of time that a child ought to stay away. This can be disputed.
Interim Contact
Contact arrangements made on a temporary basis until the matter is settled at a full court hearing.
Defined Contact
Where the schedule of contact is determined by the court. This can be very detailed.
Reasonable Contact
Where the parties agree the level of contact. This can often be an unstable arrangement due to differing views of what is 'reasonable'.
Supervised Contact
This may take place at a contact centre, where volunteer (but not necessarily trained) staff are present (or nearby) during contact. The surroundings are often institutional and depressing - but there is always the hope that it is a temporary arrangement. Supervised contact can include contact at any place specified by the mother, supervised by herself or her relatives.
Indirect Contact
Where no direct contact is permitted it is necessary to use other methods. Typically these include letters, postcards, gifts, telephone calls etc.
Updated 29-02-2000