(OK, we know that “custody” disappeared as a legal concept in 1991 but it is still a word that many people use to describe the legal label dealing with where a child lives, so excuse my outdated jargon.)

“I won’t force the children to see their mother/father” is a statement I hear often from parents going through a separation or divorce. As a parent myself, I understand the overwhelming desire of wanting to protect a child from any unnecessary upset and upheaval. But just because a child tells us they don’t want to do something doesn’t mean we shouldn’t encourage them to do it does it? (Note the word ‘encourage’ and not ‘force’.)

As parents we have a lot of expectations of our children. We expect them to go to school. We expect them to brush their teeth. We expect them to eat their greens (well sometimes!). We expect them not to commit crime. We will use all our resources and strategies to ensure they do these things. Is that force?

Of course, children will be children and will resist things sometimes. They don’t want to eat broccoli. They don’t want to do sums. They don’t want to go to the dentist. Some days they don’t want to go to school. So how do we deal with these situations? Do we just accept it?

When children don’t do the things that we expect them to do there are more often than not consequences. It might be no TV, no time at the park or no playing computer games. Somehow, children get the message that these expectations aren’t optional.

So here’s the killer question! Why is it that some children get the message that going to their other parent’s house after separation or divorce is optional?

Parents who give their children this choice are implying that it might be a negative experience to see mum or dad. If that’s the case, who can blame a child for wanting to avoid it? Aren’t they just picking up on a message whether conscious or unconscious?

In a recent case involving contact between two children and their father (Re H-B (Contact) [2015] EWCA Civ 389) the Judge noted that at various stages both parents had been criticised for their intransigence. It was said that they had “behaved in ways that are destructive to the prospects of contact”  Some of the father’s behaviour had been “startlingly unwise” There had been a lack of effective maternal support for direct contact and a failure on the part of the mother properly to support the therapy which had been recommended. The judge had described their (yes both parents) conduct as ‘inexcusable’.

Sir James Munby, the President of the Family Division, hearing the appeal made his views clear:

“There are many things which they ought to do that children may not want to do or even refuse to do: going to the dentist, going to visit some ‘boring’ elderly relative, going to school, doing homework or sitting an examination, the list is endless. The parent’s job, exercising all their parental skills, techniques and stratagems – which may include use of both the carrot and the stick and, in the case of the older child, reason and argument – , is to get the child to do what it does not want to do. That the child’s refusal cannot as such be a justification for parental failure is clear: after all, children whose education or health is prejudiced by parental shortcomings may be taken away from their parents and put into public care.”

This robust and frank judgment makes it plain that it is unacceptable for parents to shelter behind the assertion that the child is adamantly opposed to spending time with their other parent, whatever the age of the child. Parents should be clear that the court expects them to exercise all of their parental skills and stratagems, to get the child to do what he does not want to do. The court has to grapple with all the options to try and help the parents make the arrangements work. The presumption is now that involvement of both parents in the life of the children will further their welfare. There needs to be proper reasons why spending time with the other parent shouldn’t happen. Time will tell if the courts use this presumption in a positive way. Of course, the simple fact is the court should be the last resort to resolve these issues. More often than not it’s the by-product of the parents’ relationship. Deal with the underlying issue and there will be real winners. Children!

Read more about child custody and arrangements for children following divorce or separation here: /our_services/children

Leave a Reply

Your email address will not be published. Required fields are marked *

Please note: our response to comments will be for general information purposes only and does not constitute legal or professional advice.

Your email address will not be published. Required fields are marked *