The short answer is ‘it depends’.
If you are a parent, who is being denied time with your child, this is not the answer that you want to hear. If you are a parent, who is concerned for a child’s wellbeing, it might also be frustrating to hear. However, at the heart of family law is the principle of child welfare. The law applies rules to achieve what is in the best interests of a child, appropriate to their different circumstances and this might involve stopping a parent from seeing their child.
The presumption
These rules begin with the presumption that a child is entitled to the involvement of each parent in their life because it will “further the child’s welfare”. There is no bias towards mothers. Society might require women to bear the brunt of childcare, and the control might appear to rest in the person who has most involvement with the child’s care, but the law is clear that a child has the right to expect both parents to be a part of their life.
When the presumption does not apply
A parent cannot be prevented from spending time with a child if that ‘parent can be involved in that child’s life in a way that does not put the child at risk of them suffering harm’.
This means that in order to stop a father (or mother) from seeing their child, there must be evidence that a child is at risk of suffering harm. This is not simply a question of being less able to care for a child due to lack of experience, or because a parent hasn’t stuck to times that they were supposed to collect. This has to be a predominant harm that might affect the wellbeing of a child, and includes issues such as exposing the child to violence/drugs/alcoholism. If a child’s education is in jeopardy, or they are being placed in a criminal setting, these might also count as reasons to prevent a parent seeing their child. The most obvious of course is direct harm to the child, such as abuse or mistreatment.
A court presented with evidence of something which might detrimentally affect the wellbeing of a child has a range of orders and powers which they can use to protect the child. This might be a prohibited steps order, which can prevent contact taking place through to a child arrangement order, which specifies the times and ways a parent may spend time with a child, e.g., a supervised visit in a contact centre. Initially, a court may permit a child to reside solely with a parent alleging harm, but will try to ensure that a hearing takes place as early as possible. This is because the law acknowledges the damage that can be done to a child deprived of both parents’ care.
Can mediation help?
In many cases yes!
It is a common complaint in mediation that a mother is preventing a father spending time with his child. Mediators are bound to remain impartial and create a confidential space to allow parents to discuss their children. We have experience in how to address high emotions and bring the focus to what really matters; the child.
Sometimes parents use their ability to influence a child to hurt the other parent.
Sometimes one parent is so busy or overwhelmed by separation that they cannot begin to think about the other parent’s wishes to see their child. They do not understand the benefit to the child from encourage a relationship with the other parent. Sometimes a parent is feeling so insecure and traumatised by a separation that they want to keep the children closer and fear losing their love. There are many underlying reasons why one parent might be preventing an ex-partner from spending time with a child, that do not involve the child being placed in danger of suffering harm.
People who come to mediation will agree to participate on the basis that they will try to see a situation from the other person’s point of view. Whilst mediation has to have attention to what the law is, the aim is to give participants the space to decide on their own child’s future and encourage parents to communicate on what, where and how the child will spend time with each of their parents. We promote autonomy for parents and believe that this allows for better decisions. A family knows best when it comes to their respective work commitments, extended family support, culture, accommodation, religion and education etc.
Read more about fathers parental rights in our blog.
Case Study
Charlie came to mediation because their ex-partner Alex had been denying them any time with their 3-year-old daughter for over 6 weeks. Charlie had been hoping it would resolve over time, but in fact Alex was becoming less communicative. Alex started denying access after an argument at a family gathering. Before this, Charlie had been seeing Amy every other Saturday, helping at extra times to suit Alex’s work commitments. Alex had decided to stop Charlie seeing Amy as the child came home underfed and disgruntled.
After one mediation session Charlie and Alex agreed to reinstate Amy’s visits with Charlie. Initially this would be over a few hours, building to an overnight. Charlie and Alex agreed to measures to improve communications focused on Amy. They agreed to send pictures of Amy whilst the child was in the others’ care. Both agreed that they needed to put Amy and her future ahead of their bad feelings and fixed a date to review the arrangements in a second mediation session.
Mediation will not be permitted to continue where there is any concern that a child is at genuine risk of harm. It becomes a matter for a court to examine evidence with the assistance of CAFCAAS (Children and Family Court Advisory and Support Service) to determine what is in the best interests of the child. However, if there is no reason to suspect harm a mediation can proceed and will involve the following:
- Investigation into the reasons that lie behind any decision to prevent contact
- Exploration of actions that the absent parent can take to reassure a concerned parent
- Discussion of common concerns for parents in this situation
- Suggestions may be made as to how parents might communicate with each other to improve the care of their child.
Above all, mediation promotes the principle that a child is entitled to the love and care of both parents.
Want to known more about family mediation?
You can call Direct Mediation Services on 0113 4689593, email info@directmediationservices.co.uk or complete the form below for a free call back.
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