Analysing the Principle that Children should maintain Contact with both Parents after Divorce or Separation.
16th June 2017
Analysing the Principle that Children should maintain Contact with both Parents after Divorce or Separation.
Author: Jane Montgomery
Queen’s University, Belfast
When the parents of a child separate or divorce, “issues about the child’s future residence and contact with the non-resident parent will invariably arise.” The Children (NI) Order 1995 reflects the principle that contact between the child and both parents should be maintained after a relationship breakdown. Formerly, parents held ‘rights’ over their children. However, the current focus is on the rights of the child and the parent’s responsibilities towards that child. The Government states “there should be a legislative statement of the importance of children having an ongoing relationship with both parents after family separation.” Although the law considerably reflects this, issues arise in practise, including the negative impact that contact can have on various parties including the child. These issues shall be discussed in relation to the orders under Article 8; the welfare principle and the principle of parental responsibility shall be considered, before analysing the benefits and deficiencies of the residence and contact orders.
The welfare principle advocates that children should be brought up and cared for within their own families; “the paramountcy of the child’s welfare remains the golden thread that runs through… children cases.” This is furthered in the case of J v C which highlighted the importance of the child’s welfare; their interests outweigh those of the adults, and contact should be maintained with both parents where it benefits the child. This principle suggests that continuity of relationship is in the child’s welfare. However in practise, in circumstances which will be discussed, continuity of contact between the child and parents after a separation can negatively affect the child’s welfare.
The principle of parental responsibility imposes duties upon the parents relating to the child. Parental responsibility can reside in several individuals- including natural parents- such as guardians and local authorities. Parents maintain their parental responsibility after divorce, and the courts are amenable to maintaining contact between the child and both parents holding parental responsibility. The law here reflects the principle that contact should be maintained; it presents a conception of the ideal family, promoting the idea that parents should share responsibility for their child. Parental responsibility is a means for the law to ensure the child maintains a relationship with both parents.
An important order in the legislation that reflects the principle that children should maintain contact with parents is the residence order, which establishes “the arrangements to be made as to the person with whom a child is to live.” This can be made in favour of either parent, or can be joined between both parents as a shared residence order. Shared orders are symbolic as they “put a stamp” on the child, illustrating that they have two parents that care for them equally, “endors[ing] the idea of shared parenting.” However it is not always feasible for both parents to have residence, as highlighted in A v A. When making, changing or ending such an order, the court considers the needs of the child with regard to the ‘welfare checklist.’ This list is not determinative and it does not indicate how the criteria should be balanced against each other. This is beneficial for the maintenance of relationships as “views as to what are in a child’s best interests change over time,” therefore the criteria can be adapted to each specific case in order to reach the most viable outcome.
While residence orders reflect the principle of maintained contact, issues such as discrimination arise. There is a presumption and evident bias in favour of mothers being granted the residence order. When determining who the child should live with, it can be argued that courts and society hold the instinct that the young child will go with the mother. This is evident as generally the mother receives preferential treatment in relation to this order. This order therefore undermines and discriminates against certain groups in facilitating contact with one parent but not the other. Although there is no legal presumption, the courts judgments tend to show that it is the general idea, as per Lord Jauncey; “To ignore the fact that in normal circumstances… a mother is better able than a father to fulfil the needs of a very young child is to ignore what is generally accepted to be reality.”
Despite the growing acceptance of shared residence orders, they are somewhat problematic in practise. They disrupt the child’s life to an extent; “children never really know where they belong, as they are passed yo-yo-like from one home to another… they become confused and poorly adjusted.” This argument is furthered in Re N where Hale J stated “orders that a child should share his time between two homes are not orders that should become standard” due to the disruption that it may cause the child; “the child needs the security of knowing where his home is.” This in itself goes against the welfare principle, as undoubtedly confusion and disruption to the child due to shared residence orders would negatively affect his welfare. Furthermore there is the issue of residence in cases where the parents of the child disagree, or where there is tension. If the child resides with one parent, will that parent facilitate contact between the child and the non-resident parent? These issues illustrate that although the law reflects the principle that the child should maintain contact with both separated parents, it is not feasible in practise due to the issues considered. Perhaps the law should set out clear guidelines on how to achieve such without the risk of the child experiencing distress.
The principle that children should maintain contact with both parents after a divorce or separation is reflected in the law through contact orders. The definition of contact orders conveys that the resident parent has the obligation to permit the child to have contact with the non-resident contact parent. Contact is seen as being beneficial to the child and both parents, as shall be discussed. The United Nations maintains “State Parties shall respect the right of the child who is separated from one or both parents to maintain… direct contact with both parents… except if it is contrary to the child’s best interests.” This approach is taken in relation to human rights; that the child has a right to contact with both parents unless detrimental to his welfare. The court has furthered the idea of this right, with the view that contact with the non-resident parent is crucial for the child’s well-being and should only be declined if there are compelling reasons for doing so.
Contact is flexible, and the court can impose conditions upon an Article 8 order. Contact, whether direct or indirect, may dispel unfounded misconceptions that the child could have about the non-resident parent. Where direct contact is prohibited, the courts have gone to great lengths to ensure and maintain it indirectly, such as in A v L. This illustrates the extent to which the law reflects the principle of maintaining contact, facilitating a beneficial relationship with both parents. Wrangham J’s viewis that “no court should deprive a child of access to either parent unless it is… in the interests of that child that access should cease.” Bainham relates this to the welfare principle, highlighting that contact is beneficial and necessary for the child’s well-being. The idea that contact benefits the child is furthered in Re LVMH with the suggestion that the assumption is based on the expertise of mental health professionals. Thorpe LJ emphasises this by referring to “the universal judicial recognition of the importance of contact to a child’s development” and the principle that “it is almost always in the interests of the child to have contact with the non-resident parent.” Contact can enable the child to better understand their parents’ separation, thereby removing any potential feelings of guilt, and ensure that the child does not feel rejected by the non-resident parent.
However, Gilmore is critical of the assumption that contact benefits the child. He highlights that there is no ‘presumption’ or ‘assumption’ in domestic law that contact should be granted due to its benefits to the child’s welfare, stating “contact cases are decided by facts not presumptions.” Arguably it is “wrong to say as a matter of law that there is a presumption,” as this is no more than stating that contact is beneficial to children. Decision-making in contact cases should not be influenced by a theoretical principle that it is beneficial; courts should avoid creating this assumption. Furthermore, “some of the responsibility for ensuring that contact ‘works’ is also now being placed on children.” This burden is a concern for the courts; is it more beneficial to the child to maintain contact with both parents, or is “the maintenance of contact between a child and an absent parent… a detriment to the child”?
The idea that contact should be maintained is often disputed. A child may reside with one parent, and this parent will facilitate contact between the child and the other parent. However, perhaps the separation or divorce was due to harm caused by one parent to the other. Such violence and harm can continue after a separation- there may remain an ongoing risk to the physical safety and emotional well-being of both the resident parent and the child. If a contact order was made to benefit the child in such a circumstance, it could result “in enormous intrusions into the life of the mother… causing her great emotional harm.” This underlines the difficulty for the courts in justifying contact in such cases “where the benefit to the child is minimal.” Ultimately the idea of maintaining contact in circumstances like this one is “a clash of competing rights of each parent and the child.”
Recently there has been a greater emphasis on recognising the impact of domestic violence on one parent and the child witnessing it. In Re LVMHthe court upheld the decision refusing direct contact to four fathers who had abused their children’s mothers, and stressed that all cases require individual assessment. Nevertheless the court stated that “domestic violence of itself cannot constitute a bar to contact,” this is merely one factor to consider when balancing discretion. However, a study undertaken by Fortin et al revealed that “when contact orders had… got things wrong, the difficulties were exacerbated… the court seemed unable to control the situation[s]” of domestic violence, which is problematic. Furthermore, when considering indirect contact, there remains an onerous burden on the harmed parent to facilitate and maintain contact due to the court considering it beneficial for the child. Nevertheless, the court considers factors in granting a contact order; that contact between the child and father may benefit the child’s identity; the positives of the father’s male contribution to parenting; and how the opportunity to mend harm may be lost if no contact is ordered.
Contact orders cause disruption to the child. Contact issues can lead to bitter disputes between parents, leaving the child feeling torn. Arguably the child should be given a voice, yet it must be ensured that they are not manipulated by either parent. The courts “seem to be placing greater emphasis on taking children’s views into account.” In some instances “courts recognise… it may be impossible and counterproductive… to force the child to have contact where he… does not want it.” However, courts are reluctant to let the child’s resistance be decisive; the long-term good is considered to outweigh the child’s short-term distress. Yet this seems like forcing the means to a potentially positive end at the detriment of the child; the court will not enforce contact where the child is caused long term emotional injury, but short term distress is distress nonetheless. A study undertaken by Buchanan et al showed that “just under a third of children said they would rather not see the [non-resident] parent… if this meant an end to the arguments.” Evidently there is difficulty for the courts in reaching the best solution in such difficult and sensitive circumstances.
The law certainly reflects the principle that children should maintain contact with both parents after divorce or separation. However, it cannot adequately enforce the principle. While the legislation facilitates an ongoing relationship between both parents and the child, the issue in practise is the quality of the relationship, and the effect it has on all parties. When this legislation is transposed into a real scenario of a relationship breakdown with a child involved, it is rarely possible to force all parties to agree or to get along with one another. The legislation, albeit reflecting the principle to quite an extent, guarantees nothing in practise. The law in this area has attempted to preserve the quality of relationship of a post-divorce family after the separation, which unfortunately encounters copious problems practically.
 Gilmore and Glennon, Hayes & Williams’ Family Law (OUP 2016) 478
 Ministry of Justice and Department for Education, The Government Response to the Family Justice Review: A System with Children and Families at its Heart (Cm 8273, February 2012) para 61