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Contact orders

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Introduction

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 parents1. 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' standard2 and applying their wishes. The court should only make a contact order until the child's 16th birthday unless in exceptional cases3 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 welfare4. ...read more.

Middle

which states it is an important factor if the child is at risk of suffering harm (physical or emotional). The courts have made a wide ambit as to what covers harm defined in S. 1(3) checklist, especially when the harm to the child is indirect, especially in contact applications. This would encompass 'parental alienation syndrome' and/or domestic violence. A mothers fear of violence overrode the child's right to see the other parent. In Re: L and others (2001) the courts said experts reports and the courts own awareness of a child's likelihood of harm. Circumstances of the other parent are also a factor which needs to be taken into account. B v B (minors) (custody, care and control) (1991) 1FLR402 held that expert witnesses is very important when assessing the risk of harm to children. On a breakdown of an unmarried relationship where there are children, in order to clarify any arrangements and ensure they are as far as possible acknowledged in law and enforceable, it may still be necessary for the parents to seek a contact order. Orders can be sought in 'family proceedings'. Re: R (minor) (contact) (1993) 2 FLR 762 Re: D (minor) (contact: mothers hostility) (1993) 2 FLR 1 @ 3 "one starts with the premise that it is the child's right to know both its parents but there may be cases...where there are cogent reasons why the child should be denied that opportunity" Although there is no diversion from that position, there may be times when the court needs to take into account the effect of contact on the resident parent in cases of domestic violence Re: L and others (above). Before this case mothers who refused contact where seen as being 'implacably hostile', but since the rulings of this case the courts are more willing to accept such considerations in cases of domestic violence. They may even want a change in the violent partner's behaviour before they would grant contact. ...read more.

Conclusion

In Hokkanen v Finland16 stated that a member state is in breach of article 817 if the court does not provide a way in which a father can have his right of contact. The court of appeal has taken a more robust approach in that there should be a assumption and not a presumption of contact by the father. There is more focus, especially in domestic violence cases on how the father can change his pattern of behaviour if he is to gain contact with his child/children. If the father omits to do something which is harmful to the child18 or by a positive act to the child19 then the court are certain to refuse the father contact until he has proved to the court that his actions and ways have changed for the better as was laid out in Re: L and others (above). 1 M v M (1973) reaffirmed in the Children Act 1989 2 Gillick v West Norfolk & Wisbech AHA (1986) - A child of sufficient maturity is allowed to make their own decisions, based upon a question of fact on the child's age and understanding. 3 S.9 (6) Children Act 1989 4 Re: M (Minor) (Access) (1992) 5 (1989) 2 All ER 545 @ 569 6 To 'gillick competence' standard 7 Article 9 - Human Rights Convention on the rights of the child. 8 2 FLR 437 @ 444 9 (1993) 2 FLR 278 10 (1992) 2 FCR 681 11 (1998) 2 FLR 237 @ 240 12 (1997) 2 FLR 48 13 (1999) 2 FLR 703 14 A v N (committal: refusal of contact) (1997) 1 FLR 533 15 A v N (above) 16 (1996) 1FLR 289 17 Which relates to a right to a private and family right 18 Re: T (PR: contact) (1993) 2 FLR 450 - a father did not return the child when he was suppose to. 19 Re: P (terminating PR) (1995) 1 FLR 1048 - a father caused injury to the child ...read more.

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