Contact with children after separation – what are your rights?

07 Dec 2017

INSIGHTS

When parents separate, it can be an upsetting, stressful time for everyone involved. When there are children of the relationship to consider, separated parents can have different views on what is best for the children going forward.

Often, parents can successfully co-parent and come to an amicable agreement about childcare arrangements and other matters concerning the welfare of their children. However, in some cases, differences and tensions can escalate to a point where an impasse is reached, and parents are unable to agree on matters such as where the children will live or when the non-resident parent will have contact.

In these cases, parties will often consult solicitors to negotiate child contact arrangements on their behalf, attend mediation, or, in a minority of cases the court will require to adjudicate on the matter.

What are your rights and responsibilities as a parent?

A person who has full parental rights and responsibilities (PRRs) (a mother automatically obtains PRRs at birth, as does a father if he is married to the mother or the child was born after May 2006 and the father is named on the birth certificate) has, in relation to contact:

the responsibility, if the child is not living with them, to maintain personal relations and direct contact with the child on a regular basis; and
the right, if the child is not living with them, to maintain personal relationship and direct contact with the child on a regular basis.

It is an often overlooked point that parents have rights only to enable them to fulfil their parental responsibilities. The legislation is framed in such a way as to make clear that parents do not have “rights” in relation to their children in the conventional sense of the word. The responsibility to maintain personal relations with your child must operate in the child’s best interests. Many disputes between parents stem from different views about what type of arrangement is in their child’s interests.

Contact order

Court should be the action of last resort. However, if you are unable to agree matters directly with your ex-spouse or –partner, and mediation and/or negotiation through solicitors has proved fruitless, it may be necessary to apply to court for a contact order.

A contact order will set out the arrangements for your contact with your child, which can include direct (physical, face to face contact) and indirect (telephone, Facetime, Skype) contact, and can fall anywhere in the spectrum between supervised contact, through regular non-residential or residential contact, to authorising holidays abroad.

What happens at court?

If matters proceed to court, the court’s paramount concern is the child’s welfare and what is in their best interests. Before granting contact, the court must be satisfied that it is better for the child that the order is made than that none be made at all.

In a contact action, there will be at least one Child Welfare Hearing and in the usual course of events, a series of Child Welfare Hearings at which the Sheriff will hear the parties and their respective solicitors on their positions in relation to the contact sought, and why is it or is not in the child’s best interests.

The child’s own views may also be taken in account where appropriate. This may be by the Sheriff speaking to the child in their private Chambers, by the child expressing their views in writing, or by the Sheriff appointing a Child Welfare Reporter to meet with the child to obtain their views and report back to the court. Depending on the child’s age and maturity, their views could be a vital factor in the outcome of the action. A child of 12 years or over is presumed to be of sufficient age and maturity to express their view and the court is likely to give significant weight to that.

A final word

Separated parents ought to try to keep in mind that, despite their own relationship coming to an end, they will remain the parents of their child for the rest of their lives and often have a long road to go until that child has grown into adulthood.

The effects of an acrimonious separation on a child can be significant and long-lasting, and a contentious court action in respect of contact is likely to add to that negative impact. While it can be difficult to remain on amicable terms with an ex-partner, research shows that the impact of separation on children and indeed parents can be minimised if parents can continue to work together to co-parent as harmoniously as possible.

It is important to find a solicitor who understands how difficult emotions can impact on the separation process, and who is able to discuss additional sources of support and resources which can help parents stay on track.