Access to children

Cases regarding access to children are argued on the basis of what will be best for the child rather than what the parents consider fair or in their interests.

Usually, a court will allow contact between a child and parent, but the extent of this contact is contingent upon many different factors. The law encourages parents to keep in contact with their children and contact is usually only restricted when it is in the child’s interests.

The Children Act 1989 states that any decisions made about a child will be made with ‘paramount consideration’ given to the child’s welfare. Factors to be taken into account include:

• The child’s feelings. The more able to form an opinion a child is, the more attention a court will pay to these wishes. Although a child’s age will be a major factor, there is no set age for when a child’s own feelings become more important, so this is open to contention.
• Any likely effects of changing a child’s circumstances. The court will try to ensure a child’s life is disrupted as little as possible.
• The child’s sex, background, religion, age, any special needs (either physical or cultural) and many other characteristics can be deemed relevant and contestable factors by a court when it comes to deciding residence.
• When deciding residence, the court will want to be convinced by a party that they can provide for the child’s physical, educational and emotional needs. This will cover material effects (such as childcare equipment), accommodation, food and love and affection.
• The court will consider how likely a child is to be abused by a carer when making any decisions. Abuse can be sexual, physical or emotional.
• Parenting skills come into consideration: does a parent have all the skills necessary to look after a child? Are these abilities liable to impairment for any reason (such as addictions, character traits or lifestyle)?

All access cases should screen the parents for domestic violence. If either party alleges that domestic violence has taken place, the court may order the Children and Family Court Advisory and Support Service to investigate and produce a welfare report.

Any welfare report should take into account:

• the child’s personal wishes;
• the safety of each party and the safety of the child during contact;
• the harm suffered by the child;
• any harm that the child might be susceptible to if contact is awarded; and
• domestic violence experienced by the child or either parent.

A child’s right to contact with its parents does not depend on whether or not the parents were properly married. Children of a common law marriage should also have contact with both parents. If the separated partners do not make informal arrangements for access to children, then a court can be asked to decide provisions. Usually the court will allow contact between child and parent, but exceptional circumstances may prevent this from happening.

Access can be granted to anyone, including grandparents, aunts, uncles and siblings. Anybody who has had a close relationship with the child can apply for contact.

If a civil partnership/marriage of a same-sex couple breaks down, the child will be treated as a ‘child of the family’ enabling the court to make orders for the child’s care which recognises the non-birth mother’s position.

Residence is what used to be called custody. It relates to where a child will live on a permanent basis and who will be their carer.

If the parents can agree between themselves who gets residence, the court doesn’t have to get involved. However, any agreement made outside of court is not final, so it is possible for either party to go to court later if things are not working out.

In court, it is possible to get a residence order, which stipulates who a child lives with. Here an important distinction is made – it decides who a child lives with, not a specific address. Even when a father does not have parental responsibility, they still have the right to apply for a residence order.

Residence orders last until the child is 16, or, in special cases, until the child is 18. They can be overturned if the court makes another order at a later date or if the parents live together after the order is made for a period of over six months.

There are two kinds of residence order. They are:

1. a full residence order; and
2. a shared residence order (also known as a joint residence order).

A full residence order says which parent a child will live with. A shared residence order is made in favour of both parents. It specifies how long a child spends with each parent. It will not always say that both parents get access for same amount of time. A shared residence order indicates that both parents have made equal contributions to their children’s lives and have shared responsibility of the children’s upbringing.

If a father wins a residence order, he will automatically be granted parental responsibility, even if he did not have it before. This will grant him the legal right to make decisions about the child’s life, such as their religion, medical treatment and education.

After residence has been decided, the non-resident parent may still be eligible for contact with a child. Contact can be:

• direct – ie, face to face;
• indirect – through telephone calls, letters, emails etc;
• supervised – contact when another person is always present to supervise; and
• staying – where a child stays overnight with the non-resident parent.

‘Reasonable contact’ is determined on a case-by-case basis. What constitutes reasonable contact is not set in stone.

During contact, a person can usually take the child wherever they want, but this is debatable. A court may look unfavourably upon a child being taken to a bookmakers, for instance.

For occasions like school meetings, both parents should be treated equally, unless another court order has been made to prevent this (if this would put the child or a parent at risk of harm, for instance).

Parents can agree contact outside of court or they can apply for a Contact Order.

Contact orders, like residence orders, are argued on the basis of the Children Act 1989. Contact orders are legally binding and will set out the grounds on which parents can see their children. If these provisions are frequently not followed (one parent continually denying another their allotted contact time, for instance), an appeal can be made to the court to have new awards made.

Contact should only be refused if there is a good reason to do so; the party who refuses to allow contact may be held in contempt of court, leaving the door open for further legal action against them.

Another alternative to court action is mediation. Mediation involves both parents seeing a third party who will help them come to an agreement. As it is outside of court, it is entirely voluntary and far less formal – and therefore less stressful – than court proceedings.

Some people – including children, victims of abuse and those undertaking family mediation – are eligible for legal aid to help them pay for any access proceedings.