#1862 - What Happens If The Residential Parent Opposes Contact - Family Law

What happens if the residential parent opposes contact?

• Opposition can be castigated

  • Re O (Contact: Imposition of Conditions)

    • Bingham MR

      • Neither parent should be encouraged or permitted to think that the more unco-operative they are, the more likely they are to get their own way

        • Where direct contact cannot for the time being be ordered, it is ordinarily highly desirable that there should be indirect contact

          • so that the child grows up knowing of the love and interest of the absent parent with whom, in due course, direct contact should be established.

      • This calls for a measure of restraint, common sense and unselfishness on the part of both parents

    • Swinton Thomas LJ

      • Under that provision, in my judgment, a court can impose conditions which require positive steps to be taken by one parent or the other in order to facilitate the contact

• But there may be good reasons for following the wishes of the non-resident partner

  • Re P (Contact Discretion)

    • Held

      • Necessary to distinguish two kinds of cases

        • The first is where the opposition of the contact is justified:

          • if the residential parent’s fears are genuinely and rationally held than the court may refuse contact

        • The second is where the opposition is emotional and there is no rational basis for it

          • In such a case, contact will be ordered unless doing so would cause the residential parent such distress that their child’s welfare is harmed

• Focus should be perhaps on non-resident parent’s contact

  • Re M (Minors) (Contact: Violent Parent)

    • If F wants to have contact, then he must behave in more suitable way

    • Herring: this move is good as it does not just castigate M’s opposition, but focuses on whether F’s conduct is what is causing the difficulties.

  • Me: movement to qualified right talk may further encourage an idea of parents having responsibilities.

• The problem of non-resident parent’s fears

  • The fact that both parents hate each other is likely to render contact ineffective,

    • As it requires the co-operation of the resident parent to ensure it happens

    • And the child can become an unwitting pawn in the dispute, which impacts on their welfare

What about where the parent and/or child has suffered domestic violence?

• The concerns

  • 1. Children who live in an atmosphere of domestic violence suffer psychological harm, even if they do not actually witness the abuse

  • 2. There is evidence that there are statistical links between child abuse and spousal abuse

  • 3. There is a fear that a father may be able to use contact arrangements to continue to dominate and abuse M

    • Contact arrangements can be used to discover M’s address, and therefore for F to turn up and threaten/abuse her.

  • 4. One survey which looked at cases where contact had been ordered even though there had been domestic violence, suggested that 25% of children were abused as a result of the contact.

• The law

  • Re L (A Child: Domestic Violence)

    • Butler Sloss P

      • Dr Sturge and Dr Glaser considered the question in what circumstances should the court give consideration to a child having no direct contact with the non-resident parent.

        • In their view there should be no automatic assumption that contact to a previously or currently violent parent was in the child's interests,

          • if anything the assumption should be in the opposite direction and he should prove why he can offer something of benefit to the child

      • The general principle that contact with the non-resident parent is in the interests of the child may sometimes have discouraged sufficient attention being paid

        • to the adverse effects on children living in the household where violence has occurred.

        • There is not, however, nor should there be, any presumption that, on proof of domestic violence, the offending parent has to surmount a prima facie barrier of no contact.

  • Practice Direction from the President of the Family Division on Domestic Violence

    • Where there has been domestic violence, the court must consider

      • (a) the effect of the domestic violence which has been established on the child and on the parent with whom the child is living

      • (b) the extent to which the parent seeking residence/contact is motivated by a desire to promote the best interests of the child

        • Or may be doing so as a means of continuing a process of violence, intimidation or harassment against the other parent

      • (c) the likely behaviour during contact of the parent seeking contact and its effect on the child

      • (d) the capacity of the parent seeking residence or contact to appreciate the effect of past violence and the potential future violence between parent and child

      • (e) the attitude of the parent seeking residence/contact to past violent contact by that parent

        • And in particular whether that parent has the capacity to change and behave appropriately

    • Every part of the welfare checklist must be applied considering the findings of fact regarding violence

      • And consider any harm the child has suffered as a consequence of that violence, and any harm they might potentially suffer

        • And an order for contact should only be made if it can be satisfied that the physical and emotional safety of the child

          • and the parent with whom the child is living can, as far as possible, be secured before during and after contact

• The paramountcy of welfare principle

  • B/c welfare is paramount, it can cut both ways

    • If the child is very attached to the parent, then...