29th December 2014
Child Access Rights
Who has automatic rights to access with a child?
When considering who has automatic rights to spend time with a child, the main theory to understand is that of parental responsibility. A mother automatically holds parental responsibility however a father can obtain parental responsibility in three ways:
- If the father is married to the mother of the child;
- If the father is named on the child’s birth certificate and the child was born after 1 December 2003;
- If the father has a Court Order providing him with parental responsibility
For grandparents, there is no automatic right to spend time with a child as they do not hold parental responsibility, unless they have a Court Order that says so. Social Services sometimes share parental responsibility for a child if Court proceedings are ongoing.
The paramount concern of the Court is the child’s welfare and what is in their best interests. One of the areas that the Court will consider is whether the child’s identity needs are being met and this also incorporates whether a child spends time with their extended family.
A child has a right to spend time with both parents provided it is safe to do so. The level of contact can vary depending on the circumstances of the case. For example, where there are concerns over a child’s safety, it may be appropriate for a contact to take place in a contact centre where a volunteer supervises the contact to ensure the child’s safety.
What types of contact are there?
There are two types of contact namely direct and indirect contact. Direct contact is face-to-face and indirect contact includes letters, cards, gifts, telephone calls and skype. You can also have supervised direct contact, meaning that someone else is present whilst contact is taking place to keep an eye on how contact is progressing.
Resident parent vs Non-Resident parent?
Historically, there has been a difference between the resident parent and the non-resident parent. The resident parent is the person that the children live with and the non-resident parent is who the children spend time with. There has been a push more recently to recognise shared parenting of children and moving away from the idea of a primary carer. However, the resident parent holds the power. It is usually the resident parent that makes the decisions as to when the non-resident parent will see the children and for how long, whether there are overnight stays and how the holidays are split.
How do I get contact with my child?
If you are not happy with the level of contact that you are having, or whether you are being denied access to your children, the first step is to try and negotiate with the other parent. The only reason to stop contact between a parent and their children is due to the child’s safety. Reasons such as not paying enough child maintenance, having a new partner or being malicious are not sufficient reasons to stop contact and the Court will not look favourably on this. A good idea is to keep a diary of when you are seeing the children as if you have been spending time with the children unsupervised and for large amounts of time, it will be harder for the resident parent to argue that you should be seeing the children less.
If negotiating with the other parent has not been successful, you can try meditation. This is where you both meet with an independent third party top try to come to an agreement. Should mediation not work, the final option and last resort is to make an application at Court for a Child Arrangement Order as to who the child spends time with, formerly known as a Contact Order. There is a Court fee of £215 for this application however if you are in receipt of a low income, you may qualify for a fee remission. Cafcass will become involved. Cafcass is the Children and Family Court Advisory and Support Service. They carry out background checks with the police on all parties and checks with social services. Cafcass will also speak to all parties to obtain their views before providing a letter to the Court with all of the relevant information. The Court takes Cafcass’ information seriously as they have taken the time to carry out all of the necessary investigations.
Cafcass will make suggestions to the Court as to what the next steps should be. This could be that drug and alcohol testing is undertaken, investigations are made into domestic abuse allegations or a change in contact arrangements take place amongst other proposals. If the parties cannot agree what the arrangements are for the child, the Court will make the decision after hearing evidence from the parties. Evidence may be from the parents, family members, Cafcass, social workers, school etc and can be oral or written, or both.
What if the other parent says they want contact but doesn’t turn up?
If you are the resident parent and the non-resident parent is constantly asking for contact but then not attending and letting the children down, unfortunately there is no Order to force a parent to have contact with their children. It may be that it is in the child’s best interests to have no contact with a parent rather than on an ad hoc basis whereby the child becomes distressed because they are constantly being let down. In this case, the non-resident parent needs to show their commitment to the child by proving they can attend at contact promptly and regularly, and that contact is a pleasant experience for the child.
What should contact be like?
It is not enough to merely have the child in the same room as you whilst you play on your x box and talk to your new partner, make sure the child is involved and is experiencing good quality contact. Contact does not need to be expensive or to involve showering the child with luxury gifts. Simply being with their parent, spending quality time with their parent and doing activities together is enough.
Cartwright King is a national law firm specialising in Family law and child contact. Please get in touch if you would like any advice or assistance.