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A Presumption of Reasonable Contact?

14 April 2009 4,901 views One Comment

We believe family courts should adopt the principle that, following divorce or separation of parents, there is a presumption that both parents will have reasonable contact with their children unless there is a good reason otherwise.

Clearly there is a big difference between one case in which the child and his resident mother, for instance, live a mile away from the non-resident father, and another case in which they live 300 miles away. Because of these differences of circumstances, the exact definition of reasonable contact will vary between cases.

We attach great importance to the demand for reasonable contact rather than just contact. A presumption of just contact is too easily dealt with by allowing, for example, one hour-long meeting per month in a supervised setting, or an exchange of Christmas cards. We believe that such levels of “contact” between a child and his other parent are simply not enough for a proper relationship to be maintained.

To those who insist that the amount of contact between child and non-resident parent be quantified – either as a percentage of the child’s time, or in terms of a number of days per year – the family law establishment replies with a by-now familiar objection: that all cases are different, and that to tie the hands of a family court by specifying a fixed amount of contact will mean that sometimes the court will not be free to decide what is best for the child in a particular case. (And in case some of us were in any doubt about our children, we are then helpfully reminded that they are not a CD collection).

The argument that any prior specification or presumption about levels of contact to be ordered, will inevitably conflict with the overriding principle that the child’s best interests are paramount, appeals to many people. After all, you cannot ask the courts to observe two basic principles – one principle has to have priority over the other. And the view of the establishment is that the paramount principle has priority over everything else.

This argument, although superficially attractive, is however completely invalid, and can be easily shown to be nonsense. To see why this is so, all that is necessary is to interpret the “presumption of reasonable contact” principle not as a competing principle that jostles for supremacy over the paramount principle, but simply as an explanation of one part of what the best interests of the child are.

Reasonable contact with his other parent is one of the things that any child needs, just as he needs air, water, food, education, and protection from danger. And he needs all these things quite regardless of whether his resident parent wants him to have them or not.

The best apples

You have gone to the supermarket on an errand for your mother, who has asked you to buy the best apples you can find. Maybe you’re uncertain as to what she means by best, so you ask her: Do you want me to choose the biggest apples, or the sweetest apples? To which she then replies: The best apples are naturally the sweetest ones, regardless of their size. So now you know what to look for: sweet apples, rather than big apples.

In such a case, nobody would say that your mother has suddenly changed her mind – whereas at first she insisted upon the best apples, now she is asking for the sweetest apples. Nobody would say that there was any conflict between the two instructions you have been given: to choose the best apples, and to choose the sweetest apples.

The first instruction was ambiguous, and the second one explained it more clearly. The second instruction did not contradict the first instruction, it simply explained what the first instruction meant.

Similarly, a presumption of contact does not override or contradict the welfare of the child principle; it is in the best interests of the child to have contact with both parents.

An example of a principle rather closer to the original theme of bringing up children is the requirement of compulsory education for school-age children. The Education Act obliges parents to ensure their children are educated, thereby enacting a principle which is almost universal in countries of the developed world, and widely accepted to be entirely for the benefit of children.

No one suggests that children would be better off, if it were left to the resident parents to decide whether to have their child educated. There has recently been a spate of well-publicised cases in which mothers have been prosecuted for failing to ensure this, and in these cases the general view of society is that those mothers have failed to act in the best interests of their children.

So, it appears that the law can say to parents: your child must be educated whether you or he likes the idea or not, because education is one of the things that children need; and furthermore, it can make that requirement without in any way conflicting with the paramount principle.

Why therefore, can the law not say to parents, in exactly the same way and without conflicting with the paramount principle: if you divorce or separate, then your child must maintain reasonable contact with both of you, unless there is a good reason otherwise?

Of course, as we have shown, the law could say this – and it could say this without contradicting the paramount principle.

Why should it be up to one parent to arbitrarily decide whether they act in the child’s best interests regarding their relationship with their other parent – when they don’t have that choice with their child’s education?

Contact “When it’s safe”

A frequent amendment, insisted upon by those opposing a presumption of reasonable contact, is the addition of riders such as “when it is safe” to almost every phrase concerning contact.

The idea, of course, is to pretend only they truly have the best interests and safety of children at heart.

However well intentioned they may be, we believe these amendments are uniformly unhelpful, and do little more than promote the (sadly fashionable) climate of fear regarding contact issues.

More importantly, such amendments are already completely unnecessary; the welfare of the child paramount principle over-rides everything else and clearly precludes anything which puts a child’s safety at risk. There is no more need to say “contact occurs when it is safe” than “contact occurs unless there would be a tub of acid suspended above the child’s head”. Both of these riders state the obvious and are covered by the paramount principle in any case.

We believe a resident parent should be required to act in the child’s best interests in all matters concerning their welfare. Most normal people would regard this as an important part of the parental role.

We believe neither parent should have the right to choose whether they harm a child by denying it either education or a relationship with their other parent. The Children Act (and the way it is implemented in family courts) gives the resident parent that right; the right to harm their child if they choose.

In our view, the law and courts should robustly protect the child’s best interests in all matters and not arbitrarily ignore them when inconvenient. At the very least, a parent should be required to have good reasons for damaging a child’s relationship with their other parent.

A presumption of reasonable contact without good reason to the contrary, would weaken the right of a resident parent to harm a child by denying their relationship with the other parent for no reason.

Surely, this should be the minimum the family justice system is aiming for?

One Comment »

  • DavidG said:

    Who is preventing this blindingly obvious approach from coming about? Legislators or judges?

    It is accepted by child welfare experts, and it is the settled view of parliament that, in all but a small proportion of unusual cases, it is in the best interests of the child to have contact with both parents. This is undermined unless the word “reasonable” is implied in front of the word “contact”.

    It should not require further legislation for the courts to start to adopt this position, indeed there are, perhaps, some encouraging signs that they are beginning belatedly to do so.

    Could it be that both the UK and Scottish parliaments are tired of being asked to legislate on this contentious matter only to find their will defeated by the courts?

    This very clearly expressed Opinion needs to be put in front of every judge in the country.

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