Contact orders

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Introduction

Contact orders require the person with whom the child lives or is to live, to allow the child to visit or stay with the person named in such an order, or for the named person and the child otherwise to have contact with each other.

It allows the non-resident parent or any other person named in the order to retain contact with the child, in a way to be decided by the court. This could be by stays, visits, letters or telephone calls, depending upon the circumstances of the case. All contact other than seeing the child in person is deemed indirect contact. Contact with the parents is the right of the child and not the parents.

If there has been a family breakdown then the court must consider the welfare checklist contained within S. 1 (3) Children Act 1989, required if S.1(4) applies, but the court will usually do this in every case as a matter of good practice. In applying the welfare checklist the court will more increasingly be persuaded by the wishes of the child especially as the child becomes older. The court will apply the ‘Gillick competence’ standard and applying their wishes. The court should only make a contact order until the child’s 16th birthday unless in exceptional cases

Domestic Courts

When a court reaches its decision on the matter of contact, the court must bear in mind that the paramount consideration is the welfare of the child. If there is a conflict between the parties, the S. 1(3) checklist must be borne in mind. This is frequently the case as these orders are usually sought in cases of family breakdown.

The accepted approach to the subject of contact is that there is a presumption that the child will be benefited by retaining contact with both parents, and contact should be allowed unless it can be shown to be detrimental to the child’s welfare. If there is a contested application for contact, then it is a matter for the court to decide on S.1 (3) considerations. But this may have well changed as I with the Human Rights of all parties becoming an important factor.

Under usual circumstances, it will be seen that a contact order will be granted to allow contact with the child and the non resident parent, and although the courts are very unwilling to allow no contact at all (more than likely to opt for indirect contact) Nottinghamshire CC v P (No.2) (1993) it was held that such an order could be made.

S.11 (7) allows the court to attach directions as to how contact orders are to be carried out and to attach conditions.

The courts have recently found in favour of the mother in refusing direct contact with the father and although the it is in the best interests of the child to have contact with both parents, a mothers fear of the father was enough to refuse direct contact between the father and child as was held in Re: D (Contact: Reasons for refusal) (1998).

Fathers may well as have seen some light at the end of the tunnel with the ruling in Re:H (contact: domestic violence) (1998) where the court held that domestic violence would not constitute an absolute bar to contact, it may well be a question of fact as to whether the contact is direct or indirect and decided on the merits of each case.

But a further court of appeal decision in Re: L & others (contact: domestic violence) firmly decided upon the facts that contact would not be allowed.

The decision in L has had implications towards future cases and was applied in Re:F (a child) (contact order) (2001).

This can be contrasted with Re: G (domestic violence: direct contact) (2001) which reaffirmed the approach in Re: H stating that domestic violence does not constitute an absolute bar, but the violent parent must be aware of the effect of the violence would have on the child or children.

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It seems to me that the courts attitude towards domestic violence is a strict one, as evidence has shown that the court do not have to admit professionals opinions, the court must merely take into account and weigh their professional opinions and judgement as was held in F v West Berks AHA

Family Law Act 1996 – Part 4 – Domestic violence???

Human Rights and Future

With regards to the introduction of the Human Rights Act 1998, it was thought that there may be changes in the attitude towards parents’ rights of contact with their children. ...

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