The Law
The Children Act 1989 states that the child’s welfare is the most important consideration. The previous phrases of ‘access’ and ‘custody’ have been replaced by contact and residence respectively.
Contact can be direct, for example, visits and holidays. It can also be indirect, such as, letters and email.
What factors are taken into account?
When considering what is best for a child, the following factors need to be considered:
- the child’s feelings and wishes, depending on his/her age
- the physical, emotional and educational needs of the child
- the likely effect of any changes in his circumstances
- the age, sex and background and any characteristics which are relevant
- any harm which the child may have suffered or is at risk of suffering
- how capable each of the parents is of meeting the child’s needs
The Court
A Court is concerned about the welfare of a child and what is in the child’s best interests. The Court process often involves three types of hearing:
1. The first is called a ‘directions’ appointment or sometimes a ‘conciliation’ appointment
The judge wants to know essentially what issues are agreed and what the Court needs to do to resolve the remaining issues in dispute. This can be, for example, whether or not there should be overnight contact visits or the duration of holiday visits.
In some cases the judge will involve CAFCASS. This stands for: Children and Family Court Advisory and Support. CAFCASS looks after the interests of children involved in family proceedings. It works with children and their families, and then advises the Court on what it considers to be in the children’s best interests. The CAFCASS officer will often prepare a report therefore to help to judge. CAFCASS only works in the family courts.
2. The second is a ‘review’ appointment
Here, the parents, their legal advisers and the judge will have a copy of the CAFCASS report, if appropriate. It is sometimes the case that during this process the parents have agreed matters already or in light of the report have decided to reach a compromise in the interests of the children. This can be a final agreement or perhaps an interim agreement to see how the contact progresses over, say, the next 3 or 6 months before reaching a final agreement.
3. The third is a ‘final’ hearing
This will take place where the parents cannot reach an agreement about contact. Inevitably, the parents will have to give evidence to the judge to say what they think is best for the child. The judge is then left to make a difficult decision about what the judge thinks is in the child’s best interests and this may not suit either parent.
Are there any alternatives?
Communication is often the key to solving a problem about contact to the child. It is important to step back and to put the child first. This can involve a compromise to ensure that the children have some stability.
Mediation is one alternative. A mediator is a trained professional who listens to both parents’ wishes and concerns and tries to help them come to some arrangement about contact.
Collaborative Law is another one. If you are unable to agree on the contact arrangements, then Collaborative Law could be a very good option to discuss the children. This is much better than going to court which can be expensive, lengthy and distressing to all concerned.
Therapists can also support the parents emotionally and psychologically, which can either be done individually, or with both parties together, and in tandem with the collaborative process.
What is the solution?
Both parents should be working towards establishing a parenting agreement that will benefit the child. This is not about any other disagreement they may have. Anything to do with money should be kept entirely separate.
Although a parent may think that they have no alternative but to “fight” over the child, this is not the case. A child, like a judge, will be waiting for the parents to co-operate and reach a solution together.
Contact which is agreed between parents is more likely to be honoured by them.
Remember, it is not the parents’ rights that are paramount but what is in child’s best interests.
