#1864 - When Should There Be Contact Between A Child And Parent - Family Law

Is there a right to contact in the court’s approach?

• The Child’s right to contact?

  • Re W (A Minor) (Contact)

    • Sir Stephen Brown

      • It is quite clear that contact with a parent is a fundamental right to the child, save in wholly exceptional circumstances

        • This is a right belonging to the child rather than the parent

• Or just welfare? Seems to be an assumption, but not presumption in favour of contact

  • Re M (Contact: Welfare Test)

    • CoA

      • Contact is not a fundamental right of the child

      • But there is a strong presumption in favour of contact, the test being

        • Whether the fundamental emotional need of every child to have an enduring relationship with both his parents (s.3(1)(b))

          • Is outweighed by the depth of harm which in the light of his wishes and feelings (s.1(3)(a)),

            • this child would be at risk of suffering (s.1(3)(e)) by virtue of the contact order

  • Re L (Contact: Domestic Violence)

    • Thorpe LJ

      • Judicial statements as to how applications for contact should be determined have spoken not of rights but of either presumption or principle

        • The significance of the distinction is reduced by what appears to be universal judicial recognition of the importance of contact to a child's development

      • Judges can rely on their experience as practitioners and judges to choose which options best promote child welfare

        • But, particularly in the most difficult cases, the judge will have the advantage of expert evidence from a mental health professional.

      • The assumption that contact benefits the child cannot be derived from legal precedent or principle

        • It must find its foundation in the theory and practice of the mental health professions.

          • the proposition that children benefit from contact with the parent with whom they no longer live

            • must be drawn from current opinion shared by the majority of mental health professionals

    • Butler Sloss P

      • As a matter of principle, domestic violence of itself cannot constitute a bar to contact - it is one factor in the difficult and delicate balancing exercise of discretion.

        • Nor should it lead to a presumption against contact which the parents has to get over.

      • The fostering of a relationship between the child and the non-resident parent has always been and remains of great importance.

        • It has equally been intended to be for the benefit of the child rather than of the parent.

  • Herring:

    • Butler Sloss P seemed more willing to suggest per Re O that contact was a good in itself

      • However, she probably was agreeing with Thorpe LJ that each case should be considered on its own merits, and only pointing out that in most cases it would be beneficial

Should parents have a right to contact with the child?

Contact being in the best interests of the child all of the time is not supported by the evidence

• There are certainly reasons to believe that contact with a non-resident parent might be beneficial

  • 1. It avoids the child thinking the non-resident parent has rejected them

  • 2. It enables the parent and child to maintain a beneficial relationship

  • 3. Contact can dispel erroneous fantasies about the non-residential parent

  • 4. Contact helps the child develop or retain a sense of identity, especially cultural or religious

  • 5. Contact can help the child understand the parental separation.

  • 6. It can ensure the child retains contact with the wider family of the non-residential parent

  • 7. It can help the child feel free to develop relationships with a step-parent w/o a sense of betrayal to birth parents.

• However, the evidence shows that the quality and nature of the contact is what counts, not the frequency or whether it occurs at all

  • Me: If our aim is the best outcomes for children, then giving a parental right or a child right to contact needs to be supported by evidence that it is beneficial for them

  • Gilmore

    • After my extensive study of contact, research suggests that it is not contact per se which is important to children’s adjustment

      • But the nature and quality of that contact, and there is a range of factors which impact on that nature and quality

        • The evidence does not suggest we can, or should, generalise about the benefits of contact

  • It is true that children grow attached to parents...

    • “Attachment theory”

      • This is the idea that a child forms a psychological attachment with a parent or parent figure

        • This normally takes place within the first three months of the child’s life, but it may occur even up to the age of 7

        • Removing a child from someone to whom they have become attached can cause serious harm

  • BUT....

    • Eekelaar and Maclean: Children can do just as well even if the parent is not around

      • What has not been established beyond doubt is whether a child whose separated parents behave gently and reasonably with one another and to her

        • But who sees the outside parent rarely or never,

          • Somehow does less well than a child of similar parents who sees the outside parent more often

    • Pryor and Daly Peoples: Parents need to be around in a meaningful way – contact itself is not the cause of good results

      • Fathers who are able to have a nurturing an monitoring role have a positive impact on the children in a variety of ways

        • Those fathers whose participation is confined to outings and having fun then, will have little influence on their child’s adjustment

  • Rogers and Pryor: contact is not the only factor in play

    • The relationship between the amount of access the non-residential parent and child adjustment is not straightforward

      • Some studies find that frequent contact is associated with better adjustment for children, others find no relationship

      • A few find negative relationship between frequent levels of contact and child well-being

        • It seems that the relationship between contact and well-being is moderated by other factors

  • Smith et al: the biological link may not be the problem

    • On a recent study on step-families, contact with the natural parent was shown to have little discernable effect on the child’s welfare

      • Crucial to their welfare was the relationships in the home they lived in,

      • Which suggests contact should not be promoted where this causes a significant disruption in the child’s home.

• Potential disadvantages of contact:

  • 1. Contact often leads to bitter disputes between the resident and non-resident parent, and this atmosphere of conflict may harm the child

  • 2. The child may feel torn between the residential and non-residential parent, a feeling that may be exacerbated by emotionally intense contact sessions – perhaps causing a psychological disturbance.

  • 3. The relationship between the child and non-residential parent may be an abusive or bullying one whose continuance will harm the child.

Clearly the right can’t be unlimited... but it might strengthen the court’s treatment of it if it was classed as a right

• Bainham:

  • There is a right to contact, in that there is a fundamental presumption which can be rebutted with good reasons

    • There is a right of a child to have contact, and a right of mothers and father to have contact with their children

  • Thus both the resident and non-resident parent have a right to contact based on their genetic links

    • UN Convention on the Rights of the Child:

      • Art 7:

        • A child has a right from birth, as far as practicable, to have a relationship with and be cared for by his parents

      • Art 9:

        • States Parties shall ensure that a child shall not be separated from his or her parents against their will,

          • except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures,

            • that such separation is necessary for the best interests of the child.

    • ECHR Art 8

      • Hokkanen v Finland – the mutual enjoyment by parent and child of each other’s company

        • constitutes a fundamental element of family life

• The problems

  • BUT Herring: The two approaches are likely to lead to similar results

    • If contact is shown to be beneficial

      • there will be both a right to contact and it will be in the child’s best interests

    • If contact is shown to be not beneficial,

      • it will not be in the child’s best interests,

      • and while there is a right to contact, this would be qualified in that it could be interfered with if there was sufficient justification (harm to child).

    • Where it might make a difference is where contact causes the child very slight harm.

      • Although contact would not be permitted under the welfare principle, it might be insufficient justification to outweigh a parental right to contact.

  • The difficulties of inherent entitlement

    • All of Bainham, the ECtHR, and the texts of the ECHR and UNCRC indicate that the rights can be qualified or forfeited in appropriate circumstances

      • BUT lay parent may not understand this legalistic approach – like parent in Re O,

        • might see right as something inherent, unlimited and liable to be used as a weapon which state denies

Contact as a privilege, not a right?

• Instead, conceive of it as a privilege

  • While rights do carry with them obligations, most people conceive of these as more readily being imposed on another party, rather than the right holder

    • Privilege/status = more readily brings to mind responsibilities

      • E.g. non-resident must act civilly to resident and vice versa

      • Must pay child maintenance on time, try and co-operate with each other

  • Isn’t this just adopting legal policy depending on public perception?

    • Perhaps, but more adequately reflects what we want people to do – law has a place in encouraging behaviour

      • But also has to be expressed in a manner ordinary...