NB On 22 April 2014, The Children and Families Act 2014 replaced the previous contact and residence orders with a single child arrangement orders which can set out arrangements for where, when and with whom a child will live. In many cases following a divorce, a child with live with one of his or her parents but still maintain contact [sometimes referred to as access or visitation] with the other.
The “no order” principle
The law regarding children is governed by the Children Act, at the core of which is the “no order” principle – basically this means that the court only will ever make an order if they feel it strictly necessary. Parents are expected, and indeed encouraged, to sort out arrangements for their children themselves. As a result, the vast majority of divorcing couples with children, do not need to involve the court in decisions regarding contact.
Help from a solicitor
Preferably, parents should try and come to their own arrangements for contact with the children, supported, if necessary by a specialist solicitor to make sure the children’s best interests are at the heart of any decisions that are made. You should definitely not rush off to court without exhausting all attempts at negotiating agreed contact – such negotiation is often helped by the involvement of specialist family law solicitors. Collaborative law and family mediation are two approaches that we find work particularly well in resolving disputes surrounding children. Click here for more information about these two approaches and how our accredited collaborative lawyers and jointly qualified lawyers/family mediators can help you.
However, if issues surrounding contact become really problematic and the parents find it hard to come to an agreement between themselves, if it is really necessary, they can apply to the family court for a decision on contact to be made by the judge. Family Courts can make orders, for example, regulating how often the child or children see the absent parent, as well as making provision for them to stay with them on weekends or for holidays. It also covers other visits and contact such as telephone calls. Unfortunately, the process involved in a court application can prove very slow. Judges won’t rush into a fully contested hearing which can sometimes significantly worsen the relationship between the parents, and which takes time and is expensive. Prior to a final hearing, the court will probably hold one or more interim hearings in an attempt to resolve the dispute by agreement, and in the continuing absence of a negotiated level of contact, may need to appoint a CAFCASS officer or social worker to investigate the case and make a report on the situation first. In extreme cases, the court can also rule that direct contact with the child should simply not take place. This action is only taken if it is genuinely considered to be in the child’s best interests.
Enforcement of contact orders
if you do get a court order but the other party simply refuses to comply [e.g. by providing the level of contact as ordered], you can also ask for contact orders to be revised, or enforced. Forcing contact orders can be difficult, however – firstly there are often significant delays in court process but ultimately, if one parent dig their heels in and simply refuses to comply, the court have only limited practical ability to enforce orders. Courts have been known, on rare occasions, to order that the child lives with a parent who had been previously denied contact. The court can cajole or threaten anyone refusing to comply with a contact order but the ultimate enforcement is the threat of imprisonment – in a small handful of very extreme cases the courts have been known to imprison a parent for refusing to permit contact – however this is very rare because imprisonment of a parent is rarely in the child’s best interests.
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