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Court Reporters - CAFCASS
Patron: The Rt Hon Sir John Balcombe
President: Her Honour Jean Graham Hall
Vice-Presidents: Dr. John Haynes, Simon Roberts,
Janet
Walker, Adrian James
Telephone: 01793-612299 (Day)
Court Welfare Office 01285-860280 (Evenings)
East House
9 East Street
Swindon, SN1 5BU
FAX: 01793-613399
A CHILD'S CONTACT WITH NON-RESIDENTIAL PARENTS
INTRODUCTION
There is, generally, little research into the
effects of the level of contact with a non-residential parent
on children. Each contact case will turn on its own unique
circumstances, but the guidelines set out below are considered
to be the framework within which derive the establishment
and the quantum of contact.
THE CHILD'S RIGHT
Every child has the fundamental right to meaningful
contact with his/her absent parent (1) (2). Clearly there
are factors which may deprive the child of that contact or
make it necessary to ensure that the child's welfare is not
jeopardised if contact takes place; such factors will include
(although not exclusively so) issues of significant harm or
the likelihood of such to the child (3), and the child's own
wishes and the feelings if (s)he is of an age and understanding
to express such views (4). Whilst Public Law emphasises a
clear presumption of contact between the child in care and
his/her parents, the Children Act 1989 contains no reference
to such presumption in Private Law proceedings. There is a
mandatory principle of contact, or firm presumption of contact,
in some other jurisdictions (5).
QUANTUM OF CONTACT
I am not aware of any case-law on the quantum
of contact per se. Frequency of contact will depend on many
factors (6), but in the absence of factors weighing against
a certain level of contact, the following may be used as a
framework with the contact accelerated or retarded, extended
or diminished, as circumstances justify. The underlying principle
should be one of an "ascending ladder" of frequency
which should remain child focussed at all times. The earlier
after parental separation that contact commences, then the
easier it becomes for the child to understand and accept,
and it establishes a pattern for the future.
In matters which are decided in court by order
and where the non-residential parent is obliged to convey
the child to his/her home or some other place for contact,
then allowance should be made for travelling time as appropriate.
Birth to 18 months: Birth is a starting point simply because
one has to start somewhere, but, clearly, at a young and vulnerable
age great care must be taken over contact arrangements. At
an early age, children have short memories and frequent short
visits are important (twice a week would be acceptable in
normal circumstances). There is no reason why these visits
(including some 'outings') cannot be unsupervised and they
can gradually increase in length to about three hours at a
time over a period.
18 months to 3 years: Established, frequent
visits can now be extended to include some meals. By the age
of two years, a monthly overnight stay might be possible,
encouraged and supported by each parent and carefully monitored
for any distress to the child, and leading to more frequent
overnight stays during the latter part of this period. Three
to five years: As the child moves into the third year, overnight
visits can be extended to some two night week-ends, initially
once a month. The maintenance of the frequency of contact
is important to the child as is the timing of visits from
now on. Children have an expectation that promises will be
kept and that when contact is due to take place, it actually
happens and at the time arranged. By the age of four, short
(perhaps 2-3, extending to 3-4 days) holiday periods, especially
at Christmas, Easter and during the summer, can be started.
Five to eight years: By the age of five, contact
should be established, but school and other developing activities
will now begin to have an impact. Weekday contact (unless
the parents live in close proximity) may not be so appropriate.
However, week-end staying contact can now be extended to alternate
week-ends (usually from Friday evening through to Sunday evening,
but not excluding the possibility of the child being taken
to school on a Monday morning if suitable arrangements can
be made between the parents). Holiday periods can also be
extended as soon as appropriate to a week at Christmas and
at Easter, half the half-term school break, and a couple of
weeks during the summer. At times during which contact does
not occur, letters/cards are important, and telephone calls
can be useful if they can be conducted in 'private' and free
from any pressure on the child.
Nine to twelve years: Local interest, friends
and peer group contact becomes increasingly important to the
child. If good contact has been established over the years,
then the flexibility which is required at this age should
not cause undue problems. It remains important for the child
and "absent" parent to maintain contact at a level
which will benefit the child, and it is essential that the
residential parent encourages the contact and, while listening
to the child's views, not to allow those views to override
what would otherwise be n the child's best interests. Staying
contact over week-ends and during holiday periods remains
important. Thirteen years plus: The child's own wishes and
feelings now become much more important as their own "social
life" develops, and they move towards greater independence.
Nonetheless, contact remains important but, should be seen
as flexible and negotiable. Again, if good, meaningful contact
has been established over the years, this should not prese
nt a major problem. At this age the child would probably respond
to longer, but less frequent, periods of contact - a month
during the summer holidays might be reasonable for example.
Care needs to be taken over the periods leading up to school
examinations, inevitably a stressful period for children who
will not want any additional emotional difficulties caused
by contact problems.
RESPONSIBILITY OF PARENTS
A responsible parent allows "proper"
contact and negotiates with the absent parent over the frequency
and timings, clearly demonstrating that they support the principle
that meaningful contact is in the child's best interests.
Whatever the personal difficulties have been (or which still
exist), conflict is the single most important matter for parents
to avoid in helping their children through the process of
divorce or separation, and, in establishing future contact.
Indeed, conflict is a much more important issue for the child
than even the quantum of contact. However, if contact issues
are contested, then the onus should be on the residential
parent to show good reasons why the child's right to meaningful
contact with the non-residential parent should be denied
FAMILY COURT WELFARE POLICY
I have been asked to comment on whether or not
the guidelines which I have outlined above could form part
of Probation Committee policy. The answer is "no"
- Committees do not have this function. The Chief Probation
Officer is of course, responsible to the Committee for the
professional standards of his colleagues. However, under his/her
guidance and supervision, Family Court Welfare teams develop
their own professional standards in the light of their individual
members' experience, expertise and training, and within the
philosophy of the Children Act 1989 and the guidelines laid
down in National Standards.
I feel that most Family Court Welfare Officers
would support what I have said above with the caveat that
each case with which they deal has its own particular set
of circumstances. Family Court Welfare Officers will share
"difficult" cases with their colleagues and continue
to develop strategies for dealing with contact cases in the
light of experience gained through these consultations, through
everyday practice, through training, and by reference to case-law
decisions and research findings (8). This Association believes
that we should take due note of the experience of "consumer
groups" in thinking about our practice.
THE JUDICIARY
It remains true that, if the recommendations
of the Family Court Welfare Officer can be argued logically,
and if they are made in the light of the Children Act 1989
"welfare checklist", they are invariably endorsed
by the judiciary (and the Magistrates). However, the views
of a Family Court Welfare Officer are not always decisive,
and the court can depart from the recommendation made, even
without the reporting officer being present in court for cross-examination
(Re C (Minor - Access: Attendance of Court Welfare Officer)
The Times 21 November 1994) [Notes and References attached]
1. United Nations Convention on the Rights of
the Child (Article 9)
2. Examples in English Case Law.
Re R (A Minor)(Contact)[1993] 2FLR 762
Re W (A Minor)(Contact)[1994] 2FLR 441
Re H (Minors) (Access) [1992] 1FLR 148
Re H (Contact:Principles)[1994] 2FLR 969
3. For example, see: Re M (Contact:Welfare Test)[1995]
1FLR 274 Re D (A Minor)(Contact: Mother's Hostility)[1993]
2FLR1
4. For example, see: Re F (Minors)(Denial of
Contact) [1993] 2FLR 677 5. For example: Canada - Divorce
Act 1985: Maximum contact principle (ss16 and 17) is mandatory
(although not absolute). Maximum contact with both parents
is generally presumed to be in the best interests of the child.
France - "The courts have accepted the idea that children
could share their time equally between their mother and their
father, spending alternate weeks with each parent." (The
Times, August 25th 1995)
6. Such factors will include: The child's age;
bonding - closeness of the parent/child relationship prior
to divorce/separation; the conflict between parents, pre-
and post-separation (including issues of domestic violence);
child abuse - alleged or actual; drug/alcohol abuse; maternal
and paternal post-separation adjustment. All decisions re
contact must be made in the best interests of the child, assessed
from a child-centred perspective.
7. For example, a case from the United States
Supreme Court:"Whenever a proposed move unduly disrupts
or substantially impairs the non-custodial parent's access
rights to the children, the custodial spouse ..... must bear
the burden of demonstrating exceptional circumstances ..."
(Tropea v Tropea, New York)
8. Research findings (all from the USA) - a
few significant extracts:
a) When legal conflict is high, frequent (contact) visits
were linked to fewer behaviour problems in the children; i.e.
reduced visiting had detrimental effects on behaviour in high
conflict situations. (Healy, Malley & Stewart 1990- Amer
J of Orthopsychiatry 60 [4] 531-543)
b) Evidence that behaviourial scores and peer relationships
are better and spelling and maths scores significantly higher
for children where the father contact remains higher after
separation, particularly for boys. (Bisnaire, Firestone &
Rynard 1990- Ibid 60 [1] 67-76)
c) When children see their father infrequently, fathers are
perceived as having less control, offering less support, and
providing less punishment compared with children in intact
families. (Amato 1987) Children also develop a less positive
view of the father-child relationship over time.
d) Low but significant correlation between predictable and
frequent contact with the non-custodial parent and more positive
child adjustment (unless the father was poorly adjusted or
extremely immature). (Hetherington et al 1982; Wallerstein
& Kelly 1980; Warshak 1986)
e) Positive relationship between visiting frequency and adjustment
in children was stronger when the custodial mother approved
of the father's continued contact with the child. (Guidebaldi
& Perry 1985; Kurdek 1988)
f) Feelings of guilt, anxiety, depression and loss of self-esteem
are common where access is disrupted (D'Andrea 1983)
Postscript
"Whereas most people would agree that laws
should be equitable, balancing the interests of men, women
and children post divorce in a fair, consistent manner is
difficult to do. This study suggests that changes in the legal
system and intervention practices are needed to translate
equity from theory to practice. Strategies for supporting
non-custodial parenting need to be implemented in the context
of the legal (and mental health) system(s). Efforts to minimize
perceptions of unfairness and feelings of helplessness could
result in more satisfactory and less conflictual relationships
for all family members following divorce." Arditti and
Allen: 'Understanding Distressed Fathers' Perceptions of Legal
and Relational Inequalities Post Divorce'; Family Conciliation
Courts Review, Vol. 31, No 4, October 1993 pp461-476)
Alan Sealey (Chairman) |
