Partner and Head of Family Law at Saracens Solicitors
Looking for a specific question and answer? Click the links below to jump to each section:
- Can I be stopped from seeing my own child?
- What is mediation?
- How do I make an application to see my child?
- What happens if my ex makes false allegations against me?
- What does the Court take into account when making a decision?
- What is the difference between contact and residence?
- If I apply to the court, how much contact will I get?
- What if my ex does follow the order and still stops me from seeing my child?
- If I am paying child maintenance can my ex stop me from seeing my child?
- I think my ex may take my child abroad for good, what can I do?
Both parents should be able to have a relationship with their own child. The courts also support this. However, in some circumstances it is not possible for one parent to see their child, and this is usually in extreme circumstances for example a parent could be an alcoholic, drug user, someone with a history of committing serious crimes. In these circumstances the court will consider whether the child would be at risk of serious harm or danger if the child were to have contact with that parent. If there are no such circumstances, then most often the court will make an order for contact.
Mediation is a negotiating process. Mediators are independent third parties that listen to the views of both parties and try to help them to reach an agreement. If you reach an agreement with the other parent on the child arrangements, then you still will need to attend court at least once. A consent order will need to be drafted and the C100 Application Form will need to be completed. There will be a hearing and the judge will decide if the consent order should be approved and the terms incorporated into a court order so that it is legally binding.
You must first attend a mediation information assessment meeting prior to making any application to the court unless you are exempt from attending the same. To make an application for a child arrangements order for contact so that you can see your child you will need to complete the C100 Application Form. If you have any welfare concerns, then you will also need to complete the C1A Form. There is a court fee which currently is £215 that will need to be paid when submitting the application to the court to be issued. Once the application is issued the court will list the application for a FHDRA (First Hearing Dispute Resolution Appointment). Prior to the hearing the court will usually ask a Cafcass officer who is like a welfare officer to undertake safeguarding checks on both parents to see if there has been any involvement of social services or the police or if any of the parents have any criminal convictions. Both parents will be able to raise any concerns that they have with the other with the Cafcass officer.
If false allegations are made and if they are of a serious nature, then most often the court will want to investigate those allegations before deciding if the allegations are false or true. In these circumstances the court is likely to list the matter for a fact finding hearing. Prior to the hearing the court will ask the person who is making the allegations to make a list of the allegations and provide evidence to support the same. The other person is then given an opportunity to respond to the allegations and provide evidence in support. Both parties at the fact finding hearing will then give evidence including any witnesses. The court may also order for the parties to obtain police disclosure. Once everything is considered the judge will go through the allegations and decide if any findings should be made.
The court will consider what is in the best interest of the child and will take the following into consideration when making a decision:-
- The ascertainable wishes and feelings of the child concerned, taking into account the child’s age, and understanding.
- The child’s physical, emotional and educational needs and whether the person applying for order can meet those needs.
- The child’s age, sex, background and any relevant characteristics.
- Any harm that the child has suffered or is at risk of suffering.
- How capable the child’s parents are, or any other person in relation to whom the court considers the question to be relevant is, of meeting the child’s needs.
- The likely affect of the child of any change in circumstances.
- The range of powers available to the court in the proceedings in question.
Contact is when you want to see your child which can include overnight stay whereas residence is when you want your child to live with you so that you are the main carer of your child.
The court will decide how much contact should be granted and there are different forms of contact that can take place. For example, the court could grant direct contact where you see your child face to face or indirect contact where you do not see the child but are usually allowed to send presents, cards, make telephone calls etc. The court has the power to order for supervised contact to take place. There are several contact centres that facilitate contact and if contact is supervised then they can provide a report on the contact sessions that have taken place.
Your ex will need to comply with the terms of the court order and if does not then this will mean that there is a breach. You can then apply to the court to enforce the terms of the order and will need to make an application for an enforcement order. You can also ask the court to order financial compensation against your ex.
Child maintenance and contact are two separate issues. Even if you are not seeing your child you need to continue to pay child maintenance. If you fail to pay child maintenance, then your ex can make an application directly with the child maintenance service who will assess and work out the amount of child maintenance that you have to pay.
If you fear that the other parent may remove your child for example to another country and not bring the child back, then you can apply for a Prohibited Steps Order to prevent your ex from doing this. In some circumstances you can apply for this order on an emergency basis. If the court makes the order, then your ex will not be able to remove the child without your consent or without an order from the court.
If you would like further advice about your specific situation, please contact our family solicitor Farzana Naz.