One of the key issues you will need to consider when you’re separating or divorcing is how you can ensure your children get good quality contact with each parent. Previously known as ‘access’, contact concerns the amount of time (and frequency) that your child should enjoy with each of their parents. But what is contact? Who is entitled to contact? Do you have to go to court to get contact? And what do you do if your child is struggling to get the contact with you that he or she needs? Keep reading for answers to these questions and more.
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What is contact?
Your child has the right to enjoy quality time with both their parents.
Always remember that contact is the right of a child, not the parent. There is no fundamental parental right of contact, as contact is always dependent on what is considered to be your child’s best interests.
Contact can be agreed by parents or regulated by a court order.
What types of contact are there?
There are several different types of contact your child can enjoy with you:
- Indirect contact – letters, emails and telephone calls. This may be used if no contact at all has taken place between you and your child for an extended period, or if you live a long way from your child. It can also take place if your child has decided that they don’t want to have direct contact with you.
- Direct contact – face-to-face contact where your child spends alone time with you.
- Supervised contact – this occurs where there is a concern your child may suffer harm during contact. It often occurs after a referral from CAFCASS, the court or social services. It takes place in a dedicated centre and contact is supervised and monitored by a member of staff.
- Supported contact – where contact is facilitated by a community venue designed to support the non-resident parent and their relatives. It helps you maintain a relationship with your child and you’re not monitored by centre staff.
Why is contact with both parents important to a child?
Children can often blame themselves when their parents split up. So, it’s important for their emotional health that they have contact with both parents.
Contact with both parents can help your child to cope better with your divorce, and it will help them to avoid seeing the separation as a rejection of them. In some cases, children also have more difficulty forming relationships as adults if they only had contact with one of their parents.
Courts take the view that it is in your child’s best interests to maintain contact with both parents, meaning that they often consider a bad parent better than no parent.
Am I entitled to contact with my child?
If you have parental responsibility then you will have some legal rights such as retaining an input into decisions about your child’s education, medical care, name and religion. However, as contact is the right of your child (and not your right), there is no legal right to contact with your children.
Despite this, unless there are safeguarding issues, contact with both parents is actively encouraged. If the court believes that your child’s best interests are served by contact with you, they will order this. So, unless you are considered a risk to your child you will normally be entitled to some contact.
As well as parents, other people can also request contact with your child. Anyone who has enjoyed a close relationship with them – for example grandparents, uncles and aunts – can also ask for contact.
What contact should my child get with me?
Unless there are specific circumstances, there is a presumption that the parent that doesn’t live with your child (the ‘non-resident parent’) should be granted regular contact.
However, there are no rules which specifically state how much contact your child should have with each parent. The amount of contact will be determined by what is in your child’s best interests, and affected by a range of factors including:
- Your child’s age
- How close you live to the other parent
- Who has been responsible for care until now
- Your child’s wishes and desires (depending on their age).
As every set of circumstances is different, what is best for your child should be based primarily on their needs.
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Can I force the other parent to have contact?
If the other parent is not taking up their contact as granted by a court order, you can make an application for enforcement of the order.
However, a court’s priority is the welfare of your child. So, forcing a parent who does not want to see your child to do so isn’t likely to be in your child’s best interests. It is likely to be traumatic for a child to be forced to see a parent who does not want to see them, so this can fail the court’s ‘welfare’ test.
You can’t force the other parent to have contact with your child if there is no court order in place.
Do we have to go to court to agree the contact my child can have with me?
No. When you divorce, you can try and come to an agreement about contact between yourselves. You know your personal situation better than anyone and so you will be able to make contact arrangements around factors such as your work commitments and the proximity of your respective homes.
If you can reach an agreement, there is no need to get the court involved. If you can’t agree at first, family mediation can help you to explore your concerns and reach an agreement. Indeed, you typically have to attend a Mediation Information and Assessment Meeting (MIAM) before you can make an application for a court order.
Only when mediation fails (or isn’t appropriate), or you fail to reach an agreement, would you have to apply to the court for an order.
How will the court decide what contact I can have with my child?
The court will make a decision based on the best interests of your child. They will take into consideration a range of factors including:
- how capable each parent is at meeting your child’s needs. This includes factors such as your working hours, your financial security and your ability to provide adequate housing
- your child’s wishes and desires (if they are old enough. Courts will consider a child’s views from the age of 10 and older, although the older your child the more likely it is that their wishes will be taken into account)
- the effect that changing your child’s current living or contact arrangements may have on them
- your child’s age, gender and characteristics which are considered relevant
- your child’s physical and emotional needs
- any harm that your child is at risk of.
Where contact is concerned, the right of one parent to see their children should be promoted by both parties. It is the child’s right to have a good relationship with both parents and the court will consider this when making an award.
What is a Child Arrangements Order?
Before 2014 a court may have made a ‘contact order’ to determine how much time a child should spend with each parent. Since then, a Child Arrangements Order is used to determine the frequency and amount of contact where appropriate.
An order may also outline residency issues, such as who the child should live with.
For example, a Child Arrangements Order might state that your child should live with you but contact with the other parent should take place on alternate weekends and in school holidays. Child Arrangement Orders can also include requirements for indirect contact (see above).
A court will not automatically make a Child Arrangements Order. They will only make an order when they believe that doing so would be better than making no order.
What if my child refuses contact?
If your child tells you that they don’t want contact with the other parent, you should not simply stop such contact. There may be genuine reasons why your child does not want contact anymore – for example the timing does not suit your child’s hobbies or activities. Your child may also feel guilty or upset about leaving you on your own.
Talk to your child and establish their reasons for refusing contact. While your child’s wishes and desires are important and will be taken into account (particularly if they are over the age of 10), these views will generally not determine an outcome.
You may be able to change your routine or make other alterations that will make your child feel more comfortable. Perhaps they don’t like the food that the other parent makes? Maybe they don’t like the fact they have to shower when they are used to a bath? Whatever the reason, talking things through with your child can help.
If the court has ordered contact, it will expect you to encourage your child to have contact with the other parent and ensure that it takes place. If your child continues to refuse, the other parent can take the case to court and you are at risk of being in contempt of court.
What if the other parent fails to maintain the contact we had agreed?
If you have an informal agreement and you’ve been able to resolve the dispute between you, speaking to a family solicitor can help. Your solicitor will normally begin by approaching the other parent (or their solicitor) to see if an agreement can be reached. They may suggest that both of you attend family mediation to try and sort out your dispute.
If this does not work, you may have to apply to the court for a Child Arrangements Order (see the section above). Unless the other parent can prove that contact with you is not in your child’s best interests, the court will generally favour you and want to re-establish contact.
If you already have a court order, then action can be taken against a parent who is not maintaining the court-ordered contact.
The court can impose sanctions to encourage compliance with contact arrangements and action can include unpaid work directions, payment of financial compensation, and CAFCASS monitoring. Ultimately, a court can order imprisonment for contempt of court or issue an order that your child should live with the other parent on a permanent basis.
Are contact and financial support linked?
No. The law treats contact and maintenance (financial support) entirely separately. So, you can’t refuse contact simply because the other parent is not paying maintenance. Similarly, you can’t demand contact just because you are providing financial support to your child.
Contact is determined by what is best for your child (see the section above). The payment of maintenance is not one of the factors that a court will take into account, as the risk of harm to a child is clearly not linked to the payment of financial support.
If you are not getting the amount of contact with your child that you desire, you should not stop making maintenance payments. In this instance you should consider making an application to the court for contact.
Linking contact and money is both wrong for you and your child. It disregards your child’s welfare and increases the chances of disagreement between you and the other parent. You are both obliged to financially support your child, and if you are refused contact you should seek redress through your solicitor.
Do you need help with your divorce?
Get in touch now with one of our panel of specialist local family solicitors.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
