Ian Walker – Founder/ Director/ Solicitor/ Mediator/ Arbitrator
Each year the courts deal with thousands of cases where parents are in dispute about the arrangements through which a child has contact with the parent with whom they do not live. Many of these cases are settled – but many require the court deciding what the arrangements should be.
These cases are very sensitive and often difficult cases and it is very easy for the court process to make existing difficulties/animosities between parents/family members worse.
The No Order Principle
The Children Act 1989 is very clear that the court must be satisfied that making an order is better for the child than making no order at all. In other words – the default position is that child contact is best when it is agreed between parents and there is no underlying court order.
Working agreements require clarity, reliability, good enough communication and sufficient respect for the other parent and a desire to make the arrangements work. Good working arrangements do not need parents to get on fantastically with each other – or even to talk to each other – but they do require confidence from both that the arrangements will happen as has been agreed.
Going to court is expensive and stressful and should only be a last resort. In our experience, the better that parents are able to put differences aside and work together – the better the arrangements will work.
As the default position is no order, then this agreeing arrangements using family mediation or collaborative law can be a very good option. This is because the neutral mediator or the collaborative lawyers will assist by recording clearly what the arrangements are going to be – and they will also earn their money by asking difficult questions of both parents – to ensure that pitfalls are where possible predicted. If problems can be identified and resolved in advance – conflict can be avoided later on.
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If a court application for child contact is necessary
Parents go to court about child contact because they want to see their children and/or see more of their children. The point of going to court is to obtain an arrangement that works for the parent and for their children.
Once in the court arena, then the outcome is normally a court order. As a general rule, the higher the level of conflict, the more detailed the order needs to be. Court orders can be very long.
Good drafting of court orders can avoid future conflict – again because solicitors will have experience from lots of previous cases and will be able to predict and address potential problems. For example – how handovers should work to maximise reliability and minimise conflict.
Legal representation of both parents can also assist with negotiation and settling cases at an early stage – avoiding lengthy court proceedings.
Some points to note about child contact
Prohibiting contact between parent and child is a matter of last resort – but is something that the court will ultimately be prepared to do if that is considered to be in the child’s best interests.
The courts recognise the importance of sibling relationships and a child right to a wider family life.
That there has been domestic violence does not in itself mean there can be no contact between a child and the violent parent. The court will need to understand what has happened and will need to consider whether a relationship can take place in a way that is safe and in the child’s best interests.
There are a shrinking number of child contact centres – but these can still be useful as an environment to restart/re-establish child contact arrangements. They can also be used for handovers.
If the court does not consider it to be in a child’s best interests to order direct contact (face-to-face), then the court can order indirect contact. This could be by telephone/video-conference or it could be by the sending of letters/cards. Sometimes indirect contact is a stepping stone towards the reintroduction of a parent or family member into the life of a child – sometimes it is the only option.
If there are serious allegations made by either or both parents against the other or that are relevant to deciding the case – then the court will have a preliminary hearing in order to decide what has or hasn’t happened. Once the court has established the facts – then the court will then be able to consider what arrangements will be in a child welfare.
The court will sometimes make interim orders – these set out temporary arrangements – but the court will hold off making final decisions to a later date.
If a parent makes repeated applications the court which are not really justified – then the court can place restrictions on their making future applications.
There are extreme cases where the court will decide that the only way to ensure that a child has a relationship with the other parent is to require the child to move to live with the other parent.
All families are different and all cases are different and often cases can be very difficult – or can become difficult if parents focus on the dispute between themselves rather than thinking about what might work as a satisfactory outcome – and the needs of their children.
Good legal advice about child contact
If child contact is problematical, we would always recommend that parents seek legal advice. Good advice assists in the making of good, informed decisions.
Once we know the problem, we can discuss the different alternative routes which could be taken to resolve the problem – e.g. court or mediation or collaborative law or arbitration and we can discuss the likely cost.
As a mediation service – we speak to each parent before arranging a joint mediation. It is not uncommon for both parents to be willing to mediate – but each to doubt that the other parent will be as willing to attend mediation as they are.
This doesn’t mean that mediation is always the best way forward – but if both parents recognise the problem and want to find a resolution to the problem – then you have the starting point for a negotiation.
Negotiation (whether a court or in mediation or in some other format) requires a willingness to make some compromises and a willingness to listen and to understand the perspective of the other. A good negotiation (with expert input) will look to create as many win-wins as possible. Ultimately the winners of good arrangements are the parents children.
Mixed messages from latest Family Court statistics
The Ministry of Justice has published its latest Family Court statistics for cases dealt with by the Family Courts, for the quarter October to December 2020, and the messages sent by the statistics are somewhat mixed.
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