I always find it a hard question to answer when a client comes in and asks me if they have to let the children have contact with their ex-partner. It takes a detailed exploration of the families’ situation to work out whether stopping contact is right. The very simple answer is that there are very few circumstances in which you can stop a parent seeing the children or that it would be right for the children for that to happen.
Nearly all decisions made about children by the courts start with the question “What is in that child’s best interests?” There is a presumption that it is in a child’s best interests to have a relationship and spend time with both parents unless it would be harmful to the child to do so. It should not be in one parent’s power to stop the other parent from seeing the children. It is the children’s right to have a relationship with both parents.
My experience as a mediator and being involved in Child Inclusive Mediation shows that nearly always when a child meets with the independent mediator they say how they want to see both parents. They love their mum and they love their dad. They want the conflict between their parents to stop and they want to spend time with each parent.
However, the above assumes that there is a safe environment in which the children can spend time with each parent. The situation is far less clear when there are concerns about a parent’s ability to care for the children appropriately. The first thing we have to consider is what are the concerns and why do you want to consider stopping contact?
If it is a disagreement about parenting styles then that is not enough to stop contact. If you find that you are in conflict with the other parent about the way the children are being parented then the first step I would recommend is to both complete a parenting plan. Cafcass has an excellent online parenting plan which you can access here: https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/parenting-plan/ This will help you to identify the different approaches by you and hopefully narrow the issues.
We then move up a degree in the concerns, is one parent undermining the other in front of the children or have there been some strong arguments/emotional outbursts witnessed by the children that has upset them. Such behaviour is not usually enough to enable contact to be stopped. If you are within court proceedings then you can ask for undertakings (which are binding promises to the court) to control the behaviour. The difficulty is policing such behaviour. This is where I would recommend that you enter mediation as swiftly as possible and look to agree on a protocol as to behaviour and have help in stopping such situations arising again.
My ex is erratic with attending contact?
Again, this is a hard one. The children want to see the other parent. They get excited and are waiting and then that parent doesn’t turn up. Can you stop contact in this situation due to the impact it has on the children? Yes, you could, but then you have children who are upset and want to see the other parent. I believe that a better way to manage this situation is to explain to the other parent the impact not turning up/being late has and have a requirement that they confirm they are going to attend contact perhaps 24 or 48 hours in advance. If you don’t have that confirmation then the children will not be available to see them. You then get the chance to tell the children in advance and manage their expectations.
The children don’t want to go for contact
My first question when this situation is presented to me is why don’t they want to go? The second question is how old are they and do they understand the consequences of trying to make such a decision? The reasons why the children don’t want to go need to be explored, these should be discussed with the other parent and ideally, you will be working together jointly to overcome this. It may be that your child needs some professional support such a counsellor or the family would benefit from family therapy. If the child is aware of the conflict between the parents it places a real burden upon them that they are the ones having to move between the adults and manage their relationship with each parent. It is concerning when a child is saying they don’t want to spend time with a parent. A child should not be able to choose whether they spend time with a parent if that can be avoided, the decisions should be made by the parents.
My ex is a risk to the children
This is the top end of the concerns and can be the situation where it is right to stop contact. The concerns need to be at a high level but can involve the children having witnessed domestic violence, being subjected to domestic violence, addiction, mental health problems. If there is a real risk that the children will not be safe when in the care of the other parent then this is when you can stop contact. If you have a court order in place you should immediately apply to the court to vary the order so you are not in breach of a court order.
However, having said that these are the times that contact can be stopped you should consider whether there are other ways for the children to spend time with the parent. Remember, it is the child’s right to have a relationship with both parents in a safe way. It may be that having another person present is enough to enable contact to still take place. Perhaps the children can meet the parent at an activity in a public place, perhaps the contact takes place during the day but not overnight? Alternatively, can the children maintain a relationship, even if limited, by video call or telephone, sending cards and pictures?
There are so many different situations in which a parent can begin to question whether contact should be taking place. The first thing they should do is ask “what is best for my child” and that should be answered as objectively as possible regardless of the relationship between the parents. It should not be in one person’s “power” to stop contact or their “gift” to the other parent to let it take place. Arrangements should be agreed and discussed between the parents wherever possible using professional support as needed.
Hazel Manktelow is an expert family solicitor in Hampshire and advises clients in Petersfield, Clanfield and the surrounding areas. A specialist in family law, Hazel has been a qualified mediator with Resolution since 2010. Please mediator Hazel to discuss your own unique situation.