Child Arrangement Order – Contact

If there is a dispute over contact and it is left to the Courts to make a decision as to whether contact should be allowed the Courts have to consider the following factors (as set out in Section 1 of the Children Act 1989):

• Above all the court has to consider what they believe to be in the child’s best interests and the child’s welfare is their main priority.

• The wishes and feelings of the child as far as can be determined (considered in the light of the child’s age and understanding) are taken into account. There is no strict rule as to the age when a child’s wishes and feelings should be taken into account. The older the child, the more likely it is that the Court will take account of that they think.

• The child’s physical, emotional and educational needs

• The likely effect on the child of any change of Circumstances

• “Any other person” who is likely to affect the child if contact is agreed is also taken into account. For example, the applicant’s new partner. Their history therefore becomes relevant and if there is a negative history, such as a conviction for sex offences, violence or drug abuse this will undoubtedly affect the Application for Contact and could mean that it will be rejected

• The parent’s ability to look after the child. This includes:
  • The parents working hours
  • Ability to provide adequate housing
  • Financial security for the child

Obviously each case is different and the reason that contact is denied is important to the Courts. On the whole the Courts would attempt to promote contact between the child and the parent with whom they do not live as long as it is safe and in their best interests to do so.

The following persons can automatically apply for contact without having to first apply for the Court’s permission (see next question for further details about applying for permission of the court):

• Any parent, guardian or special guardian of the child
• Any person with Parental Responsibility for the child
• Any person with a Residence Order in force for the child
• Any party to a marriage where the child has been accepted as a child of the family
• If there is a Civil Partnership, then either partner, so long as the child is a child of the family
• Any person with whom the child has lived with for three years or over.

If you are a grandparent or another person who does not fall into the list in the answer above, you cannot apply for a Child Arrangement Order to see the child without first seeking the Courts permission.

When considering whether to grant leave, the courts will take into account the following factors, amongst other things:

• The nature of your application;
• Your connection with the child;
• The risk that the application may disrupt the child’s life.

Again, over and above everything else the Court’s first duty is to the child and not necessarily the wishes and feelings of the parties concerned.

If arrangements cannot be made between the two of you then as a last resort the Court would have to impose a Child Arrangement Order which would specify the dates of which you could have the child either to take on holiday or over the Christmas or other holiday periods.

If you are not legally aided, you should be aware of costs involved in taking the matter to Court. Similarly, if you are in receipt of Legal Aid, it has to be proved that Court Action is necessary and that all other options have failed, otherwise the Legal Aid may be affected.

The Courts will consider this issue. The affect that contact may have on yourself and thus on the child is taken into account by them. In a leading case, the Court of Appeal, in simple terms, recently stated the following:

• Courts need to be fully aware of the existence of consequences on children of exposure to violence between parents;
• If allegations of violence are made in the course of a Contact Application it must be decided whether or not they are true based upon the balance of probabilities;
• If violence is proved then it does not necessarily mean that there should be no contact;
• In assessing whether violence is relevant then the ability of the violent party to recognise their past conduct and make changes is relevant; The court may consider in these cases ordering supervised contact.

This is contact that takes place over the telephone or (if permitted) by letter. Usually, if letters are sent the content is checked to ensure that nothing that is likely to upset the child is included. This type of contact may be used where the party has not seen the child for a long time so as not to confuse or distress the child or if there is a history of violence between the parents.

This is contact that is supervised by a third party. This can be either at a Child Contact Centre, or by a mutually agreed neutral third party. This type of contact may be ordered where there has been a history of violence or if there is a threat of violence or if the child has not had contact with the parent before.

You can either arrange for the child to be collected from a mutually agreeable location which is easy for both parties to get to such as outside a particular shop or other location or in extreme cases (such as a risk of violence or disagreement between the parties) contact can take place at a Child Contact Centre. This is a Centre that deals specifically with child contact.

If there is an existing Child Arrangement Order (previously Contact Order) in force that your ex-partner is not complying with, then the matter should first be referred for mediation. If this is unsuccessful or not appropriate it may have to be taken back to the courts. If the Court deems that the order has been breached there are several options the court has, such as:

• The Court could order that contact is to continue.
• Transferring Residence of the child (very rare).
• The Court can Order a Penal Notice that means that unless the order is obeyed an application to commit the person to prison can be made (also very rare as it is likely to be considered harmful to the child and may also affect your relationship to the child).
• The Court may fine the parent who has not complied with the Order and request that they attend court.
• The Court may order the parent to undertake unpaid work.
• The Court could order that the parent serve a term of imprisonment.