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How can I see my child without going to court?

Our People - Olivia Allen
3 August, 2022

No matter all the good intentions in the world, the reality is relationships are difficult and break-ups can sometimes be unavoidable and unpleasant. Whilst, ideally, no child would be affected by a divorce or separation, the reality is very different. If you are struggling with your ex-partner in terms of agreeing who can see the children, when, and how, then the court could get involved to help decide the issue.

However, before going to court, you may wish to try other avenues, not least because you should (a judge will want to see evidence that you to have tried other ways to reach agreement before coming to court), but also because it is cheaper, quicker and less stressful. Court proceedings are long and protracted, even more so now with the significant backlog caused by the pandemic.

What are the alternatives to going to court?

  1. Informal agreement
  2. More formal agreements
  3. Mediation
  4. Separated Parents Information Programme (SPIP)

If you can agree child arrangements:

1. Informal agreement

If possible, the first attempt should be to decide between you amicably what you want. You could discuss the following (please note that this is NOT an exhaustive list):

  • How much time the children spend with each of you?
  • How will this happen – in-person; video calls; telephone contact; only by letter?
  • When will this happen?
  • Where will they be picked up and dropped off to, and who by?
  • Where will the contact take place – in one of the parents’ home, in a public place…?
  • Where will they live permanently?
  • Who will have them on the weekends; during holidays; for special occasions (e.g. birthdays)?
  • What are the arrangements for varying the above, i.e. in case of illness/holiday/emergency change of plans?

Ideally you would write your agreement down on paper. This is so that if you later disagree and need to pursue another avenue, you will have a record of what you had both agreed at that point in time. Then if your partner goes against the agreement, you can show this to evidence the original agreement. If you however change your mind later down the line, you can think about what evidence you have to explain why (i.e. has the other person made it difficult for you to follow the agreement in some way?; have your circumstances now changed?).

Remember – anyone with ‘parental responsibility’ has a right (and indeed a legal duty) to help bring up their children. All mothers have this automatically at birth, and so will the father if he was married to the child’s mother at the time of birth. Unmarried fathers have parental responsibility if they are named on the child’s birth certificate. If you are a father and are not sure if you have parental responsibility or not, you should speak to a legal adviser.

2. More formal agreements

If you both agree about the child arrangements, but you want to make this agreement more formal, you can record it in a Parenting Plan. Please find an example of this on the Cafcass website.

However, even after you have made an agreement (whether ‘formal’ or informal), either parent can just decide they no longer want to comply – there is no way to force them to. This will mean that the other parent will need to go down another route to get their desired outcome, such as one of the options below, or starting court proceedings.

If you can agree child arrangements, but do not have anywhere neutral, or safe, for the other parent to see the children, ‘Child Contact Centres’ are a safe place for children and parents to have contact in a supervised manner. The staff at a child contact centre can, for example, help with handover arrangements so you don’t need to see your ex-partner; keep an eye on your child during the contact session to make sure they’re safe. If you think this would be beneficial, you can find more information and contact details on the National Association of Contact Centres (NACC) website.

If you cannot agree child arrangements:

3. Mediation

Mediators are people who help those involved in a dispute try to come to an agreement in as friendly a way as possible.

Family law mediators are specifically trained to do this; they are qualified professionals who will be the ‘go-between’ in a completely independent and unbiased manner. They are separate from the courts.

Even if you are not sure about this approach to reaching agreement, please note that if you do later go to court, the court will REQUIRE you to have already tried some form of mediation (unless an exception applies, such as domestic violence). You will need to both attend a Mediation Information & Assessment Meeting (MIAM). A family law solicitor will help you book and navigate the MIAM mediation session. There is also more information on the Family Mediation Council website.

Why would I do mediation other than that the court requires it? There are plenty of other benefits to mediation as well, including:

  • Its quicker, cheaper and less stressful than going to court.
  • Its easier and quicker to later change agreements with your ex-partner if you want to do so (if child arrangements were made by a judge, you’d have to go back to court to change it, another potentially long and costly process).
  • A professional person, trained to do exactly this, would help you and your partner communicate more easily and hopefully reach an amicable decision that suits you both.
  • Ultimately it would be you and your ex-partner making the decision – the mediator is just there to facilitate the conversation; they will not make the decision for you. However, if you went to court, any disagreement would ultimately be made by the judge, which might not be the outcome you wanted.

Remember – if you are the resident parent and the other parent doesn’t want to see the children, you cannot force them to have contact in any voluntary negotiations. If you took the matter to court, a judge is also unlikely to order contact with a parent who doesn’t want to see the children, as this would most likely not be in the children’s best interests (which is always the overriding consideration in any court case involving children).

4. Separated Parents Information Programme (SPIP)

This is an online 4-hour course delivered by Children and Family Court Advisory and Support Service (CAFCASS). It aims to help separated parents manage their conflict in order to focus on what their children need most from them.

The Separated Parents Information Programme encourages you to take steps for yourselves; this may include developing agreements that do not need court intervention. The Programme will give you ideas and signpost ways in which you can get help outside court.

It is really important that both parents attend the course; though you do not have to do it on the same day/course.

Anyone can choose to take part, and you do not already have to be part of court proceedings to do so (in fact it can be beneficial to do it before starting court proceedings, for some of the same reasons above as to why mediation is helpful).

Sometimes a court may order that a parent attends. It is then not voluntary; you must attend. You could also be referred by Cafcass, in which case attendance is voluntary.

If you are ordered by the court to take part, or if Cafcass refers you for the course, it will be free. If you chose to go voluntarily, there may be a cost (though in some areas it is free to attend even by yourself – you can contact your local provider for more information).

Attending SPIP can be done before or alongside mediation.

Please note: SPIP is currently being delivered remotely only.

Seeking legal advice for child arrangements

Finally, if all attempts to agree child arrangements do not work, you should seek legal advice. It may be that you then need to make an application to court for a Child Arrangements Order. Whilst you are able to do this yourself (and please see the government website for more on this), please consider that once a matter is in court it is very important that you comply with court orders in time, and in the correct manner. There may be cost implications for doing something wrong, whether you intend to or not (not to mention the potential negative impact on your child/children). As such we would strongly advise that if you are able to afford it, or can get Legal Aid, you seek a solicitor’s advice before making an application to court.

If you would like any help or advice on seeing your child without going to court or any issues relating to child proceedings, please do not hesitate to contact a member of our Children Matters Team or get in touch on 020 8492 2290.

Trainee Solicitor
Olivia Allen is a trainee solicitor in the Complaints and Actions against Public Authorities and Family departments and is based in our Finchley Office.

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