What happens if I am denied access to my child?
When parties separate and there are young children involved, it’s common for the parents to reach a mutual agreement for contact arrangements. Unfortunately this does not always work out. What are your options if your ex-partner denies you having access to your children? This blog sets out the legal options available to you.
Your partner cannot legally stop you from having access to your child unless having continued access will have a detrimental affect on the child’s welfare. In any matter involving contact, if it should go to court, then the courts primary consideration will be the welfare of the children. That comes above what each partner wants and it also comes above what the children themselves may express to want, because it is up to the court to decide objectively what is in the best interest of that child’s welfare.
The same applies for parental responsibility. If you are named on the child’s birth certificate you have joint parental responsibility with the other parent. This means you have equal say in regards to making decisions for that child in respect of where they go to school, what medical treatment they have, if you give consent for that child travelling abroad. That parental responsibility remains with you until that child can legally make decisions for themselves.
What do you do if you are denied access to your child?
If access cannot mutually be agreed between the parties or if one of the partners (usually it is the partner who the child is living with) denies you access to that child, then apart from contacting a solicitor the first thing you should do is to send a letter to your ex-partner setting out that:
1. You wish to re-instate the contact
2. Propose what contact arrangements you would like.
Going to court should always be seen as a last resort, after you have exhausted all avenues. The courts themselves will be reluctant to impose a contact order on the parents, they will want them to reach a mutual agreement for contact because ultimately (and this is particularly relevant if the children are very young) those two parents will have to have a long term relationship in that they will have to continue contacting each other and co-operating throughout that child’s life. You would think that with both parents wanting the same thing namely what is best for that child this would be easy to resolve but unfortunately that is not the case on many occasions.
If the letter is unsuccessful then you should both attend a mediation information and assessment meeting (MIAM) this is a legal requirement that you have to undertake before going to court. The idea is that you meet with a family mediator and both of you try and agree contact arrangements between you.
If the MIAM is unsuccessful or if one of the parties refuses to attend mediation then in order to get contact you would have to refer the matter to court. Court applications are made through a C100 form and the court fees are £215.
Court action – next steps
The first thing the court will do is to set a first hearing. The idea of this is it sets out directions which the parties must follow and this would normally be that they lodge witness evidence and that a CAFCAS officer speaks to both parties to prepare a report to the court with their recommendation for contact. At the first hearing the court will also consider setting out an interim contact order. This is an order setting out to them basic contact for the applying parent. It is unlikely to include overnight stays if one party objects and it could also include supervised contact which would be either contact with a third party here to supervise (this could often be a friend or a family member) or an appointment at a supervision centre. These are specialised centres designed to hold contact arrangements with an independent third party as a supervisor. You should be aware that the courts approach to this is generally to be cautious, which is why you only normally receive a basic level of contact to start. The court will also encourage the parties themselves to reach the contact arrangements rather than enforce a contact order on one party.
The direction hearing sets out a time table of what has to be undertaken this includes the CAFCAS report providing written evidence in the form of witness statements if drug tests are required they will be undertaken and then a further hearing is set up. It may take multiple hearings depending on how many directions are required, sometimes more investigation is needed particularly if there are serious allegations made by one party against the other i.e domestic violence.
When the matter proceeds to a final hearing the most important document is the CAFCAS report. A CAFCAS officer will interview you and your former partner as well as the children if they are old enough and any immediate people who have involvement with the children such as carers, teachers etc. The courts generally accept the reports recommendations regarding custody and contact. If you disagree with the report it is possible in specialist circumstances to have a different officer be asked to undertake a further report. Again the court will encourage parties to try and reach an agreement between themselves but if this is not possible then at the final court hearing the court will set out a con tact order which the parties are legally obliged to follow.
If you are still denied access after the final order has been set out by the court then you can refer the matter back to the court to demand access. Continued failure to comply with the court order can result in the most extreme cases in a fine or a custodial sentence. The court will always consider the effect that this will have on the children but obviously a court order cannot be wilfully breached without consequences.
Applications to court are traumatic not just for both parents but often for the children so this is why it is always deemed to be a last resort, however if you find yourself in that situation the first thing you should do is to consult a solicitor who will assist you through the process and will also be able to attend court with you if that step is necessary.
For further information please contact firstname.lastname@example.org.
uk or call 01341 281 108 / 01654 711 419 / 01766 831 882
Special thanks for undertaking the research to accompany this article is given to Jennifer Whiting