These devastating words will sadly be heard by some parents this year.
The sheer utterance of these words is upsetting, however, sadly, for many parents, these words transpire into reality. The reality of having to spend these holidays without your children is no less then horrifying and has a clearly overwhelming and negative impact on you and your children.
I do not by any means refer to valid cases where there are justified concerns and risk indicators that may prevent a parent from having contact with their children. This article is not focusing on those types of cases. Instead, I am focusing on the cases where parents are unable to reach an agreement – often due to one parent exerting an unacceptable level of control over arrangements.
Sadly, I have seen many a case where a party is unable to set aside personal issues and as a result, I find that those suffering most are the innocent children. It seems that often in the heat of the moment some individuals begin to confuse issues and seek to vent their unhappiness through the child arrangements. This is unacceptable. If the children’s welfare is not affected by such issues then they must be set aside and resolved in the applicable legal framework (i.e. divorce and separation proceedings). I refer you to my divorce guide named “OMG! Best Divorce Ever”…Said NO ONE EVER! – Divorce 101 – Back to Basic Guide – which may assist.
I guess, I would be naïve not to appreciate that complex personal argument can have a resounding effect on the parties, however, it is absolutely vital that such issues are placed aside in order to ensure the children’s welfare is placed front and center. This is a must and the legal sector should be doing more to promote an amicable approach that focuses on this principle.
Key Principles To Remember
It is at this stage that I will highlight a few key aspects of the law that may provide ‘food for thought’ in relation to individuals who are improperly preventing appropriate child arrangements. I would strongly suggest that independent legal advice is sought to deal with such matters on the basis of your specific circumstances.
Nevertheless, generally, I point out the following:
The Paramountcy Principle
It is vital to remember that the court’s paramount consideration is the children’s welfare (s1(1) Children Act 1989. Any further considerations to be raised by the parties are secondary. This point needs to be emphasized to the parties and clearly understood, especially if you are a parent preventing contact without appropriate reasoning. It is important for such a parent to stop and consider the negative impact that this may be having on the children and the consequences you may face due to your actions. It is vital to understand that the risk of harm or that actual harm to the children’s welfare can arise from unduly preventing contact with the other parent. This is surely something that both parties seek to avoid at all costs.
Parental Responsibility
Parental Responsibility is defined as ‘…all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.’
Where applicable, this affords both parents the equal right to make fundamental decisions about the children’s property and welfare (including but not limited to religious upbringing, accommodation, education, and medical treatment, etc). It is possible for more than one person to have PR for a child at any time and each person with PR can act alone in meeting their responsibility (section 2(5) and (7), CA 1989). It should be known that the resident parent (I use the term loosely) has the right to independent action in relation to day to day matters affecting the children. These day to day actions can be discharged independently without agreement or notification.
However, remember, the Court has specifically confirmed: “where two parents share parental responsibility, it will be the duty of one parent to ensure that the rights of the other parent are respected, and vice versa, for the benefit of the child” (Re W (Direct Contact) [2012]). Therefore, where both parties hold parental responsibility, there is a level of equality that should not simply be overridden at the whim of one parent who feels they can exert an inappropriate level of control over arrangements. This is a flawed approach and will cause difficulties for this parent and more importantly for the children.
The ‘Welfare Checklist’
The Children Act 1989 provides a list of considerations for the judge who has to decide the case, which helps guide them in making a decision. I could write an entire article on these aspects alone but in the meantime have applied some simple thoughts below.
- the wishes and feelings of the child concerned
- the child’s physical, emotional and educational needs
- the likely effect on the child if circumstances changed as a result of the court’s decision
- the child’s age, sex, background and any other characteristics that will be relevant to the court’s decision
- any harm the child has suffered or may be at risk of suffering
- the capability of the child’s parents (or other relevant people) in meeting the child’s needs, and
- the powers available to the court
It is very important to appreciate that children’s wishes and feelings will be accounted for within any proceedings so long as they can be ascertained. This will clearly not be possible if your children are very young but as they develop their views will be considered with the level of importance they deserve. It will be important for the court to ascertain any such views given by children are their own as the whole legal system is thankfully becoming more alert to parental alienation. The consequences of preventing contact during such periods and exerting parental alienation are very serious and the impact on the children can be very much devastating. The simple point is that children should not be fuelled with any negative perspectives you may have in respect of the other parent. It is not outside the realms of understanding to appreciate the importance of children having the input of both parents during this festive holiday period. Surely, where appropriate, the bonds and memories forged must be based on a relationship with both parents as opposed to just the one?
It must also be borne in mind, as a non-resident parent (i.e. one with whom the children do not live), you do not automatically have a special legal right to see the children during this festive period. However, this being said, I am not stating you do not have the right. The point is that the law does not contain provisions for separated parents ordering them to have specified contact for such holiday periods. I mean with all due respect, this would clearly be overstepping the mark as the day to day realities of life means that such arrangements cannot always be fixed for set periods and it would also take away the level of control that parents are entitled to in coming together to establish arrangements for their children. Therefore, you may find yourself considering, how do I deal with such an issue.
How to Resolve Child Arrangements Disputes
This being said, arrangements cannot always be agreed between the parties. If this is the case, you should consider court proceedings as the last course of action. I would suggest the following steps and along the way, if you consider you need legal representation you can find the individual best suited to assist you.
Where possible, it would make sense to try and agree to matters amicably as this would at the very least narrow down the issues in dispute and your legal representatives can then focus on these aspects. This approach should surely save time, costs and unnecessary disputes. I have drafted some tips for parents in reaching an agreement and this document is named Christmas Contact Tips. Thereafter, if unsuccessful, it would be worthwhile to consider mediation. Wherein a trained independent individual can assist you and your ex-partner to attempt to reach an agreement. If at any stage you can reach an agreement and seek a court order to ensure all concerned are protected you can normally instruct a solicitor on a fixed-fee basis to draft a consent order and have this approved by the court.
If all other avenues fail and court proceedings are necessary, you should approach these with the view that both parties being involved within the children’s lives is important to promote their welfare. These proceedings are referred to as Child Arrangement Order proceedings and I have drafted an extensive guide on this named Child Arrangement Order Guide. And, yes, before I receive this feedback, I know it is child arrangements (with an ‘s’ at the end) order, however, I have noted a lot of laypeople searching online using the terms child arrangement orders.
It is also fundamentally important, be it that the parties reach an agreement by consent or through proceedings, that the child arrangement order is expansive and covers all aspects of child arrangements. It is important that you do not drag yourselves through constant proceedings where in fact a measured approach from a good legal representative can deal with matters collectively. For example, the focus may right now be on Christmas but what about Mothers Day, Father’s Day, Birthdays, Easter etc. These matters can be dealt with and planned ahead of time and without the need for further disputes, costs or proceedings.
I do not by any means consider that me writing this article will ‘wave a magic wand’ and lead to your issues being resolved. I simply seem to add some input to this most concerning issue and possibly if this even helps one individual then it is mission accomplished for me.
Merry Christmas & Happy New Year to All
This general article has been drafted by our Head of Family Dept, Azhar Hussain. The aim is to provide some general information in respect of the issue highlighted. If you have any questions or would like to have a free no-obligation chat, please feel free to contact 08009961807. If you think content can assist others, please share.