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Mathew Waddington, a Child and Family Law Associate Solicitor for leading Family Law Practice Harrison Clark LLP in the West Midlands discusses the complexities of child residence and contact issues after a marriage or relationship breakdown.

One question I am often asked when dealing with Children's Law is 'Why can't I see my child?' The answer is not readily apparent and has been gleaned from my years of experience dealing almost exclusively in Children's Law.

The first thing to say is that there are 2 separate areas of Children's Law. Firstly there is Public Law, when the Local Authority is involved in cases such as care cases when a child has suffered significant harm and the second area of Children's Law is known as Private Law. The Americans call it custody and access we call it residence and contact. It this area that we will be focusing on here.

In the majority of cases, couples when they split do not need to resort to the courts to determine who sees the children, when, how often and in what circumstance but in some cases however couples do ask the court to intervene.

The use of Court Orders

Once it has been decided who the children live with, usually and stereotypically the mother, the courts have the power to make a contact order. A contact order forces the resident parent (the one the children live with or reside with) to make the children available for contact with a particular person, usually the father but this can be grandparents or even ex step parents. It cannot force the father or whoever to actually have the contact. The mother cannot breach the order but a certain amount of leeway is allowed for example, the family going on holiday for 2 weeks may technically breach an order but the courts would take a relaxed attitude towards it. Continuous breaches may lead to prison or even the child moving to live with the other parent.

How does the court decide?

The court will bear in mind 3 main principles which are: The no delay principle, the no order principle and the paramountcy principle.

The no delay principle speaks for itself, delay is prejudicial to the best interests of a child, and there must be no unnecessary delay.

The no order principle states that it must be better for the child for an order to be made than if no order is made at all. So show it's in the child's best interests and you can have your order.

The paramountcy principle is the most important principle. When the court decides if and then how to make an order it will bear in mind what is best for the child not the parents. This can lead to some unfair decisions from the aggrieved parent's point of view. The Children Act 1989, which regulates the courts in most private Children's Law, gives a list called the 'Welfare Checklist' to guide the Court be it the Judge who decides or the person who may report to the court called a CAFCASS officer.

The list starts with the wishes and feelings of the child concerned. The older the child the more weight the court will attach to the wishes of that child. If there is a 14 year old child the court will not force that child to contact against his/her wishes. The child is old enough to know his/her mind. If the child is 14 months old however, the wishes and feelings don't come in to it; the child cannot express his/herself.

The list continues and asks what are the needs of the child and is everyone capable of meeting the physical (food, heat clothing, accommodation etc.), emotional (giving love not overly chastising etc.) and educational (making sure the child attends school and does homework etc.) needs of the child.

The next is risk of harm the court will be unlikely to order normal unsupervised contact if the child would be put at risk. Take a drug using and violent non resident parent for example the court is not going to put the child in harm's way.

There is also the status quo argument. This is to do with not upsetting a child's routine unnecessarily. The lesson to be learnt hear is that if the resident parent stops or even threatens to stop contact you must strike whilst the iron is hot. To delay is to prejudice your case.

The court can then look at any other factors including cultural background and age and sex of the child.

The court also has some basic guideline principles based on case law. It will always want there to be contact between the non resident parent and the child so long as it is right for the child.

How can the court say I can't see my child if I haven't done anything wrong?

The vast majority of cases will lead to a contact order but the most frustrating cases, from a practitioner's point of view not to mention the aggrieved parent's point of view, are when the court refuses to make a contact order when the applicant parent has done nothing wrong. Surely that goes against natural justice and is blatantly unfair? Yes and No. It is unfair to the parent who won't see their child for many years and occasionally ever again but not necessarily to the child. To be unable to see your own child has been described by Court of Appeal judges as 'a living grief'.

However consider a case where there is a 14 year old child who has been brainwashed by the resident parent. The child adamantly does not want to see the father because the mother has fed back so many negatives over the years. Is it fair to force that child, possibly kicking and screaming, into a car to take that child to contact? No it is not. As the paramountcy principle states the Primary consideration of the court is the best interests of the child not the parent then that parent loses out possibly through no fault of their own.

Children's law is always fair to the child but not always fair to the parents but beware the brainwashing parent they are only storing problems for the future, the child will find you out.


For further information on this article please contact Mathew Waddington at Harrison Clark LLP on 01905 612001 or e-mail mwaddington@harrison-clark.co.uk

Alternatively contact Angela Baker at Marketing IQ Ltd on Tel: 01905 359475 or e-mail angela.baker@marketing-iq.co.uk

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