What happens when parents separate regarding the time they each spend with their children?
A look at different scenarios and the court's approach, endorsing the option of family mediation.
It is always hoped when parents separate that they can work together to ensure that their child continues to have a meaningful relationship with both of them. Sometimes sadly it is the case that one parent decides not to have anything more to do with the child, most commonly perhaps where there was never any relationship of substance between the parents and/or they separate before or shortly after the child is born in acrimonious circumstances. Sometimes one parent, most often in the reported cases the mother, and for the purposes of this article I will work on this basis, is so hostile towards the father that she denies the father time with his child. This could perhaps be due to a genuine fear of the father or due to bitterness about, for example, being jilted and the father starting a new relationship. Sometimes the child is denied time with their father due to their mother starting a new relationship and she wishes her new partner to become the father figure. I have come across all of these scenarios in my work as a family law solicitor and a family mediator.
The courts in their judgments emphasise time and time again that it is in the child's best interests to have a relationship with both their parents unless there are any welfare concerns which would warrant a departure from this view. Such concerns could be in relation to domestic violence which may have been suffered by the mother and sometimes the child. Sometimes the father simply does not have the necessary experience or knowledge to be able to care for the child but the court can usually deal with this by putting in place measures for the time spent to be gradually increased and there are parenting courses which parents can be directed to attend. Sometimes contact can take place in a supervised setting, either with a third party present, such as a grandparent, aunt or uncle or godparent, to reassure the mother. If the concerns are more serious contact can take place at a contact centre, which can be either on a fully supervised one to one basis, or a supported basis whereby other parents are present seeing their children and there are supervisors generally present but not specifically watching the interaction the whole time.
The court sometimes finds that the risk of harm to the child is just too serious that any form of direct contact is not possible. In these cases the court will usually provide for there to be indirect contact, which can be by way of cards, letters, telephone, skype etc. It is a very rare case when the court provides for no contact whatsoever.
There have been cases involving what is now known as parental alienation syndrome. The child absorbs the negativity of their mother to such an extent that he or she refuses to see their father and indeed is scared of doing so. A recent case has been before the Court of Appeal this year when just such an occurrence happened. The mother suffered from a very high level of anxiety, meeting the criteria for PTSD, but it was not clear whether this was due to domestic violence or a perceived threat. She continuously communicated to their son, who was aged 12 by the time of the final hearing, that his father was a dangerous man. It is a sad case because when the parents first separated in 2005 the father and son spent time together and there was a strong attachment between them. The judge at the first hearing held that the father was a "calm, thoughtful and caring man" and "somebody who does not present a risk to" the son. There was a three and a half year period when the father made the decision to withdraw his application for contact as he was worried about the stress the mother was suffering from as a result of the proceedings and this having a negative impact on her ability to care for their son. He later described this decision as the most ill-advised decision of his life.
The psychologist expert in the case expressed the view that any contact between the father and son would not succeed in the circumstances. He was consistently saying "no" to contact and the mother was found to be emotionally and psychologically vulnerable about contact. Around six or seven years had passed since the father and son had spent any time together and the judge found that there should be no order for direct contact as it would not work. The court made this judgment with sadness, describing it as tragic for both the father and son.
The judge suggested that the parents could try going to mediation as the problem was between the adults. As a family mediator I often see parents who need the space and assistance of a neutral third party, the mediator, to help them co-parent more effectively. It is interesting the judge suggested mediation in a case which seems to have gone so badly wrong, but it shows that, whilst the courts could not do anything, the adults could if they were both willing to try. Mediation is completely voluntary so there does have to be a willingness to want to sort things out and it should be entered into in the spirit of compromise and putting the welfare of the child first.
By the age of 16 it is estimated that one in three children will have experienced a separation between their parents. This is therefore a huge issue for children, parents and society as a whole. There are no easy answers but it hoped that the growing awareness in the public of the option of mediation, which still attracts public funding for those who are eligible, will help reduce the acrimony and unhappiness many children suffer.