Last updated on January 11th, 2021 at 08:19 pm
When can the court stop me having access?
When the case comes to court, the judge or magistrates will have expected you to have exhausted all options to agree arrangements amongst yourselves. This includes attending mediation (in some cases, such as those involving domestic abuse, this won’t be necessary).
Access to your child can be legally prevented by a court order, if there are safety and welfare concerns such as:
- criminal activity
- domestic abuse
- drug/alcohol misuse
- any other inappropriate behaviour that puts your child at risk
It’s also possible for the other parent to oppose any court application you make, by providing evidence to the court that you are engaging in any of the above.
In some situations, the other parent may also apply to the court for an order against you without you being there, if they believe you present an immediate danger to your child. This is known as an emergency ’without notice’ order (previously called an ‘ex-parte’ order).
If the court is persuaded to make a ‘without notice’ order, there will always be a second hearing a few days later so you can attend and defend the allegations made in your absence and present your own views to the court.
Do I have ‘rights’ to see my child?
Legal access to children isn’t an actual ‘right’. Parental responsibility (PR) gives you some legal rights and responsibilities, but there is no automatic right to ‘contact’.
The law is entirely centred on the child’s welfare and thus decisions to let you have access are made on the basis that it will improve your child’s quality of life, not because it will improve your quality of life as a parent.
However, in the absence of any safeguarding concerns, the court actively encourages a relationship between the child and both parents.
Spending time with your child will be arranged if the court believes that it will improve your child’s welfare. In 2014, the government introduced a presumption that the continued involvement of both parents in a child’s life will best promote that child’s welfare.
So, in most situations, unless it can be proven that you will pose a risk to, or harm, your child, you will usually be granted some kind of contact. However, in cases of domestic violence, the courts can consider whether there is a risk of harm to the other party if contact is facilitated.
The court will also consider a whole host of other factors, such as commitment, before making a final determination.
Can I still have access to my child if I don’t have parental responsibility?
If you don’t have PR, and you don’t have a voluntary out-of-court agreement about access, you can still apply to the court for a child arrangements order. If the court orders that your child comes to live with you, you will be granted PR simultaneously. Since 2014, if the court makes an order for your child to spend time with you, it should also consider whether to make a PR order at the same time.
Even if you do have an out-of-court agreement, you should still consider applying for PR whether by way of agreement (known as a parental responsibility agreement) or by court application.
How does the court decide what kind of access I can have?
The welfare of your child or children is the only thing the court will consider. This is informed by a number of criteria including:
- the wishes and feelings of the child concerned (considered in light of their age and understanding)
- physical, emotional and educational needs
- the effect a change of circumstance may have upon them
- age, sex, background and any characteristics which the court considers relevant
- harm that the child has suffered or is at risk of suffering
- how capable the parents are of meeting the child’s needs
If the court agrees I should be allowed to see my child, how is it arranged?
Spending time with your child is arranged through a court order. This is a document that outlines the details of your agreement and is called a ‘child arrangements order’.
What is included will vary from situation to situation. It can include very specific instructions regarding how contact will work or more general arrangements. It can also include details such as:
- the responsibility to encourage the relationship between the other parent and the child
- the agreement to not speak badly of each other
- other specific details, such as where handover will take place and who will conduct it
The details will be tailored to your situation and your child’s needs.
What can I do if I am denied access?
If you have an informal agreement, or no agreement, and your partner decides to deny you access to your child, you may need to take a number of actions, including:
- discussing the problem and trying to resolve it between yourselves without confrontation
- consulting a family solicitor for advice, who can send a legal letter setting out your proposals
- referring the issue to a local family mediator for alternative dispute resolution
- applying to court for a child arrangements order (interim decisions may be needed before the court has full information to make a final order, so be prepared for several court attendances throughout the process)
If you already have a court order or other legally binding agreement in place regarding the arrangements for your child, and your partner is breaching it, you can:
- discuss the problem face-to-face, or communicate through a mutual contact (if the court has put a non-molestation order in place that prohibits contact), to reach a solution without involving the court and causing further conflict
- write to your partner via your solicitors, setting out some proposals for a resolution to the situation
- apply to the court for the order to be enforced. This should really be a last resort—the court could fine, imprison or enforce the order (which can include penalties, such as up to 200 hours of community service) on your partner, so it could make things even more hostile
How do we work out access rights between ourselves?
When you separate or divorce, often the gentlest approach for your child is to try to work out the future arrangements amongst yourselves. Your key priority here should be the welfare of your child.
Some things you might want to consider are as follows:
- Historically, who is the child’s primary carer?
- How old is your child, what are their wishes, and what effect will different living arrangements have on them?
- Where do you live? Will one of you be moving out? If so, to where?
- Where do you work, and how will your hours affect looking after your child?
- Can either of you afford to pay maintenance to the other?
Try to do this quickly—uncertainty can be very traumatic for children, and often they just want to know where they will live, who they will see, when and for how long.
If you can agree the arrangements amongst yourselves and continue co-parenting despite your relationship breakdown, the next step you might want to take is to draw up a parenting plan. This plan will help you agree and uphold all the aspects of your agreement, from contact time to financial support and decisions about education, medical treatment and even introducing new partners.
If you’re able to reach an agreement, there’s no need to involve the divorce court at all in those arrangements and no orders will be made about your child.
What if we can’t agree on access arrangements?
You should seek legal advice early on in the process to understand what factors a court would take into account in determining any dispute about your child, and the possible impact of your separation on them.
Your solicitor can give you lots of practical tips and guidance, as well as explaining what the law says, before you and your partner become too entrenched in your positions.
With the support and guidance of a specialist solicitor, it may yet be possible to resolve matters through negotiations and compromise even if you currently don’t believe this is possible or likely.
Another option is mediation. The court will want to see that you’ve at least tried to reach an agreement using professional assistance—for example, couples or family counselling sessions.
If mediation isn’t right for your circumstances, your partner doesn’t attend, or mediation sessions break down, the mediator will give you a signed form to start court proceedings.
Except in an emergency or in other limited circumstances, the court will not accept an application for a child arrangements order until you’ve at least attended a ‘mediation information and assessment meeting’ (MIAM).
You can find out more about the different types of court order here, and also lots more about the court processes for child arrangements orders, including the role of the Children and Family Court Advisory and Support Service (CAFCASS).