What are my rights?
If you have joint parental responsibility for your children, your ex-partner cannot legally deny you access.
All mothers and most fathers hold parental responsibility. If the children were born after December 2003 and the father is named on the birth certificate, he has parental responsibility. Fathers with children born before that date hold parental responsibility if they were married to the mother at the time of the child’s birth, or if they subsequently marry the mother.
If you don’t have parental responsibility, you may need to apply to the court for a Child Arrangements Order. If the court orders that your children live with you then you will automatically be granted parental responsibility.
What steps can I take to have access reinstated?
- Talk to your ex-partner
If it’s possible to open amicable discussions about child arrangements, then this is the best course of action for everybody. Together you may be able to agree on contact schedules, living arrangements and child maintenance payments.
If, further down the line, you find you are not seeing your children as much as you have agreed then your first step should still be to talk. Your next step is to write a polite letter to your ex-partner asking them to reinstate contact between you and your children. Send the letter by registered post and keep a copy for your records.
- Engage a family law solicitor
You might find that you cannot agree child arrangements with your ex-partner. You should then seek the advice of a family law solicitor who can help you to resolve disputes in what is a highly stressful time.
- Request an Urgent Interim Contact Order (see ‘Directions Hearing’, below)
It is important for the children’s welfare that contact denial is addressed straight away. In an emergency you can apply to the courts immediately. Please be aware however that this option relates only to an emergency where a child’s welfare or safety is at stake. Most cases will not be deemed an emergency and steps 4 and 5 will need to be followed.
- Seek mediation
Your solicitor will first look to mediation to resolve disputes. A mediator will help you to agree child arrangements with your ex-partner. Mediation may be faster and cheaper than going to court and you may be eligible for Legal Aid.[1] In most cases you will only be allowed to issue an application for a court hearing if you can prove you have both attended a Mediation Information and Assessment Meeting (MIAM). Going to court is seen as a last resort. There are exceptions to the requirement to attending mediation first is if you’ve suffered domestic abuse and have proof of this.
- Apply to the Family Law Courts
If the mediation process has reached a stalemate then it’s time to apply to the Family Law Courts for a court order. The first court hearing is called a First Hearing and Dispute Resolution Appointment (FHDRA) where a CAFCASS officer (Children and Family Court Advisory and Support Service) will normally be present to try and help you reach an agreement.
If, at this stage, you and your ex-partner are able to agree then the case will end. If your case is straightforward the judge may decide not to make a Child Arrangements Order. If it is more complex an Order will be made detailing how your children’s time will be spent with a schedule detailed. If an agreement is not reached the case will continue as outlined below. It may be possible however to agree some interim arrangements for you to see the children.
In the event that things cannot be completely resolved at the First Hearing and Dispute Resolution Appointment (FHDRA), the court will make directions to prepare the case for a further hearing – this is called the Directions Hearing.
At this point you might request an Interim Contact Order. This will allow you to have contact with your children until child access arrangements are settled at the end of the final court hearing. The court process can take many months, which is detrimental to your children’s relationship with you, so it is likely the court will agree. However, the courts err on the side of caution and may not allow overnight stays or may only agree to supervised contact. Particularly where allegations of drink/drugs abuse or violence have been made.
At the Directions Hearing you will be asked to go to Mediation Information and Assessment Meeting (MIAM) if you have not already done so. The court could also ask CAFCASS to prepare a report. It is the role of CAFCASS to compile evidence in order to discover what arrangements are in your children’s best interests.[2]
Final Hearing
The final hearing will determine the final child access arrangements. When making a decision the court will take into account:
- Whether children are at risk of suffering harm or have already suffered harm.
- Each child’s feelings and wishes.
- Each child’s emotional, physical and educational needs.
- The most likely effect that any change of circumstances determined by the court will have upon each child.
- Each child’s age, background, and sex.
- The capability of each parent to meet the children’s needs based upon the Children Act 1989.
The court uses CAFCASS’s report to support their decision, if one has been prepared. The CAFCASS officer (who has a social work background) will have gathered the evidence for their report from family visits, and sometimes from family members, teachers and health workers.
The officer will talk to your children and you and your ex-partner alone about your worries, concerns, feelings and wishes. They may talk to your children in a neutral setting such as a school or library.
When deciding whether contact should be supervised or not, the court will need to be satisfied that children are not at risk from abuse or from being exposed to drugs or alcohol. The court will only agree to access on a supervised basis if it is necessary. Children’s wellbeing and their relationship with both parents is paramount. In some cases a ‘finding of fact’ hearing may be help to establish whether an allegation is true or not on the balance of probability.
What to do if you’re still denied access after a court order is made
If your ex-partner is in breach of a court order, you can take them back to court. However, the courts will only take action if the breach is regular and intentional. Consider the welfare of your children first. A sick child might not be able to visit you on a Wednesday as arranged, for example, or they might have a concert to attend that day. It is important to be flexible.
If a breach is taking place, contact your family solicitor who will write to your ex-partner on your behalf reminding them about their obligations under the law.
Returning to court is expensive and emotionally draining – it should be a last resort. Always seek legal advice before making an application to court.
How we can help
Hopleys GMA family law team supports people to have their parental rights recognised. We know that divorce and separation hurt and that child arrangements can be complicated, but that your children’s welfare is paramount.
Talk to us for honest legal guidance through this difficult period of your life by phoning our solicitors in Wrexham 01978 291 322 or our solicitors in Mold 01352 753 882
[1] Gov.uk, Check if you can get legal aid, https://www.gov.uk/check-legal-aid
[2] Child Law Advice, The role of CAFCASS, https://childlawadvice.org.uk/information-pages/the-role-of-cafcass/