Children in divorce (3)

You will now probably be aware that in cases affecting children the courts decide according to one over-riding principle: what they conceive to be in the child’s best interests. This is enshrined in section 1(1) of The Children Act 1989:

“Where a court determines any question with respect to: (a) the upbringing of a child; or (b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the paramount consideration.”

Most people think they know what the child’s best interests are but what the courts order does not necessarily coincide with that perception. This is particularly the case when one parent wishes, however sincerely, to prevent the child having contact with the other parent because he/she thinks that is in the child’s best interests. In point of fact it is usually extraordinarily difficult to obtain a court order that one parent should not have contact at all. It is somewhat less difficult to obtain orders that, for example, contact with one parent be supervised or that contact be indirect by means of letters, cards etc but it is still by no means easy. This may be despite the fact that the parent with whom the child habitually lives is quite sure that contact with the absent parent would be detrimental to the child.

The reasons for this are not strictly to do with the law but more to do with how the system works. In practice there is a strong presumption that it is in the child’s best interests to have contact with both natural parents. Because this is the ordinary case which applies in the great majority of instances it is very difficult to persuade the various personnel involved that this particular case really is different. There is a tendency to flow with the stream which affects everyone and which makes it difficult to obtain orders which are not the norm.

This is likely to start at the very first Conciliation appointment. The parties will be encouraged to reach agreement but very rarely will they agree that it is in the child’s best interests not to have contact with a particular parent. The parent who is resolutely opposed to contact will either give in at this point or will be made to feel that the proceedings are going to continue because of his/her intransigence. If the proceedings do continue (as they must unless the parent who does not wish to grant contact caves in) then a social worker will probably be asked to prepare a report which will usually contain a recommendation.

It is unusual for such a report to do much more than to reiterate the parties’ respective positions and then to recommend some form of contact with both parents. The circumstances have to be truly exceptional before a social worker will be dragged away from this norm and he/she will only make, say, a recommendation of no contact if there is compelling evidence that the child would not benefit from such contact and if that evidence is corroborated in some way. The opinion of the person who has day to day care of the child is hardly ever enough on its own. This is because there is a widely held opinion (which, in fairness, is probably generally correct) that it is in a child’s interests to have contact with both natural parents. The difficulty arises only in the exceptional case where it really is in the child’s interests not to have contact with a particular parent. The general presumption is so strong that it is difficult to displace it.

When it comes to the court hearing itself the parent who does not wish there to be contact will almost always be told how difficult it is to get this type of order and may well feel pressurised to concede. This pressure may very well come from your own legal advisers or it may, indeed, come from the court itself which may suggest that the parties take time to confer before the actual hearing. The reality is that no-one wishes to stick their neck out and say that this is an exceptional case in which an exceptional order should be made unless the case for it is overwhelming indeed. It takes a very determined or bloody minded parent to hold out against this pressure.

This type of case is invariably difficult because of the inbuilt institutional bias against it. Yet there are cases in which it is right that exceptional orders should be made. On the other hand, it is usually so difficult to obtain such orders that very good legal help is almost always necessary to succeed: the “rule” that is in the child’s interest to have contact with both parents is that strong. The converse of that is that if you are the parent to whom contact is being denied (a situation which happens all too frequently) it places you in a very strong position indeed.

It is perhaps worth mentioning, though, that this problem only arises in disputes about contact. Residence is a very different matter. Usually when the parents split up a child will habitually live with one and have contact with the other. It is rarely practical for a child to continue to live with both parents on a regular basis and in the interests of stability it is almost always best if the child has one permanent home. ‘Shared residence’ tends only to happen when that is what both parents want and they are agreed about it.


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