Why Legal Advice is Vital in Child Contact Disputes

Published: 25th July 2008

Law firm Mace & Jones has one of the most experienced and best qualified family law departments in the North West. The department specialises in effectively handling complex issues caused by divorce and relationship breakdown. One fundamental area which can lead to deeply damaging battles is contact over children. Here Mace & Jones head of family law Carole Atkinson examines the law, what can go wrong and the options available to parents.

Disputes over children is one of the most difficult and distressing areas of relationship breakdown and divorce. Almost all disputed cases involving contact or residence are emotionally charged and complicated. And as the Fathers for Justice campaign demonstrates men, as well as women, can be left feeling deeply aggrieved by the process. For this reason it is critical to take professional advice to ensure your side of the story and your concerns for your child are effectively represented.

Under the Children Act 1989 the Court regards the welfare of the children to be the first and paramount consideration. However, there is a presumption that there should be no order regarding child arrangements unless the circumstances are exceptional. Even after a divorce/separation, both parents retain Parental Responsibility for the children. This includes all the rights, duties, powers and responsibilities that a parent normally has under law. So, for example, parents retain making decisions over medical treatment and being involved in the education of the children.

But where agreement cannot be reached serious problems can arise and the matter becomes contentious. Sometimes the reasons for this are misguided with one or both parties using the children to get at one another. On other occasions there are very real causes for concern as to the well-being of the child and so court action becomes unavoidable if the parties concerned cannot come to an agreement. It is fair to say that the courts do usually regard imposing a solution in respect of children as a last resort and they will try to encourage the parties to resolve their differences by conciliation if at all possible.

In many courts it is routine for the court to provide facilities for the parties to see whether they can resolve the issues prior to going before the judge. This will be with the assistance of a court officer. If questions of residence and\or contact have to be decided by a court then the court will make its decision in the best interests of the child.

There are other factors, of course. For instance, if a teenage child is resolutely opposed to contact with one parent then a court is very unlikely to make an order which has little chance of being obeyed. With younger children the wishes of the child are taken into account depending on age but they are not decisive in themselves. Generally speaking, a court will consider contact with both parents to be in the interests of the child and it is very unusual for, say, a non-custodial parent to be denied contact with the child. There would have to be quite unusual circumstances for such an order to be made.

In practice, although the test of what is in the child's best interests seems simple enough, if one parent seeks to prevent the other having contact at all then legal advice is almost always necessary. Moreover another important point is that there is no connection between whether an absent parent pays maintenance and whether contact is allowed. Contact is decided on the basis of what is in the best interests of the child. That is not necessarily dependent upon whether the absent parent pays maintenance. Many people regard this as unfair but that is the rule. They are two separate and legally distinct issues.

But the bottom line is that contentious child contact issues are loaded with real and complex personal and legal issues. It is vital parents seek legal help to help achieve what is best for their children. At the same time this can save a lot of time and emotional heartache.