GETTING THE COURT ORDER

So you have finally fought your way through the legal process. You have spent hours dealing with solicitors and having to cope with social workers, and spent in excess of £1,500. And you have ended up with a piece of paper which states that you should be able to see your children on certain days and certain times.

This may be enough for your ex-partner to hand over the kids, and certainly for some divorced dads it produces a level of contact with the children. But unfortunately this does not mean the end to contact abuse, as many divorced dads find out to their loss. Just because the judge tells your ex-partner to give you access and allow your children to have contact with you, does not mean that she actually does it. The biggest failure of the Children’s Act 1989 is that it does not have any teeth, and if your ex decides not to adhere to the terms of the court order there is practically nothing that the judge can do to enforce it.

You may find that instead of you achieving good quality access to your children, the people who benefit from your experience in court will be the solicitors who always get paid, no matter the result to their client. You, on the other hand, have been dragged through a stressful experience, accused of many atrocities, spent a lot of money and many hours in unproductive time – with very little result.

You must adopt an approach which is designed to draw up a fair and workable court order which will benefit the kids, and be flexible enough to avoid breakdown at the first hurdle. In short, you need to consider what you wish to be defined in a contact order – what time you will be able to spend with the kids and how it will be a template to giving you the time to develop the meaningful relationship that you strive for.

What can be included in a court order for contact

When drawing up a contact order, you should consider all of the aspects of child contact. This includes the following:

• times and hours of contact;
• stay-over arrangements;
• transport arrangements;
• rights to have contact for holidays;
• special days (eg Christmas and birthdays).

The proposed order should set out clearly what the arrangements for the children should be. It is worth noting that under the Children’s Act 1989 it is the child who has the right of contact with the father; the order is drawn up for the benefit of the child and not the parent. So whilst it is the divorced dad who applies for the order, the judge will make the order out for the benefit of the child. The fundamental philosophy behind a contact order is that it is designed to protect the right of contact for the child; it is the children who have the right for unencumbered access and not the parent.

A workable court order

The purpose of going to court is to obtain a court order which gives a child a schedule of times and dates for contact with the divorced dad. It regulates contact and ensures that there is time provided to establish and develop a positive and loving relationship. The court order needs to be workable from several people’s perspectives: the dad’s, the mum’s, and the child’s. It needs to be workable for all parties if it is going to be successful. It is no good for the order to be drawn up favouring one side or the other –each party must approve it, or the order will not be adhered to. As enforcement is a real problem, consent is the only way in which an order can be made to work.

Under the terms of the Children’s Act 1989, court orders for access are supposed to remove problem areas, and protect the rights of the children to have contact with both parents. A properly drawn up contact order will go a long way to achieving this, as it can set out a fair and flexible schedule for contact times. Court orders are made up with the assistance of independent people (CAFCASS and the judges), and backed by the authority of the law. That is the principle.

It will involve, and specify, time. Time is the most valuable resource and without enough of it, it is impossible to be involved in any aspect of the child’s life. But equally, you need to realise that you have to create a life outside the role of dad. There is a need to ensure balance, in order to build happiness in your life. There is no point in drawing up a contact order that takes up all your free time, as you need to develop your own life as well as your relationship with your child. As your children get older, they will want to have more time to themselves, outside of the contact with either parent. Contact orders need to recognise the maturity and independence of the children and their needs as well as the needs of the parents.

The key to making a court order for access work is to build in some flexibility, whilst respecting all the key issues. If you obtain an order that is too rigid, then it will not be long before your ex-partner breaches the terms of the order, which will lead to contact abuse and a return to court.

A second principle in drawing up a workable contact order is fairness. If your ex-partner does not think the order is fair to her, then she is likely to ignore the terms in that order very shortly after the judge has made it, leading you back to court for enforcement. There she may well make up a series of allegations or reasons why the order is unworkable, and force you back into the legal cycle from direction hearing to CAFCASS report to more hearings – during which time she will not adhere to the terms of the original order. It is best in the first place to draw up an order that can be agreed to by you both.

Keeping the contact order flexible

• Try to set out minimum times rather than specifics. For example, ‘five hours on a Sunday’ is better than ‘between the hours of 10:00 and 15:00’.
• Try to set minimum notice periods for any changes, for example four weeks’ notice of when the kids are away on holiday.
• Try to set out alternatives. If the children are not available on certain weekends for example (maybe they are on holiday or away for the weekend), then have an arrangement that within 21 days the contact times are made up.
• Remember that you are not available every weekend, so build in some flexibility for yourself. If, for example, you are not available for the stated arrangements then you will suggest three alternative arrangements for your ex-partner to choose from, and provide reasonable notice.

The more flexibility you can build in the more likely you are to get a workable order and you will end up with more contact with your children. This fact is simple, but so relevant. The more defined your contact order is, the more opportunity your ex-partner has to breach a part of the order – and then ignore the rest of the terms of that order.

The downside of this is that contact may not be on a regimented basis, and you will have to work more closely with your ex-partner in order to make contact work. If you are not able to do this because of your poor relationship, then you need to be prepared for her to breach the terms of the order on an increasing basis, as she discovers that there is not much you can do about it and not much that the judge will do either.

You may find that what you agree ends up being for the convenience of your ex-partner, as she may take advantage of your desire to spend time with the kids, and will give you more time when it suits her. But this is a small price to pay for the pleasure of seeing your children.

If by being flexible, your ex-partner gets to benefit, then it does not matter, as your children will benefit more from the time that you will spend with them. If your ex-partner takes complete advantage, then you still have the terms of the basic order which you can stick to, or try to enforce; if it has been drawn up correctly, will have a degree of fairness built in.

Changing the terms of a court order

If you want to change the terms of a court order for access then it can be done in two ways. Firstly you can get an agreement with your ex-partner, and make the changes on a voluntary basis. If this is not possible, the second option is to return to court and vary the order. This is fairly straightforward, and involves the same process as applying for the order in the first place.

If the changes are uncontested by your ex-partner, then there will be no CAFCASS report or investigation, and the judge will make out a new order at the first hearing. However, if the changes are contested by your ex-partner, then the full process of CAFCASS reports – directions hearings and further hearings, along with arguments and time in front of the judge, will apply. This is why it is important to draw up the order in the first place as best you can and build flexibility into the terms of that order.

Breaching a court order for access

There will be times when you cannot adhere to the terms of the court order that you have. Maybe you have to go away for a weekend training course at work, or you have another commitment that precludes you from spending your allocated time with the children.

The key thing is to recognise that it will happen (although hopefully not too often) and try to agree a formula with your ex-partner which can accommodate such circumstances. Firstly, let your ex know it is going to happen – and also the children if they are old enough to understand. You don’t want them building up their hopes of seeing you on a certain date if you are going to be elsewhere. Secondly, you must try to offer alternative times to both your ex-partner and to the children. It is also best to offer several alternatives as they themselves may have other commitments.

You must never think that you have a right to breach the order. It was drawn up for the benefit of the child, and gives you an obligation to be there 100 per cent of the time. Of course, this won’t happen in the real world, and if you cannot be there, ensure that you offer your ex some times that are suitable. If no time can be found, then there is little you can do other than forfeit your contact time.

Failure to either communicate or offer alternatives will probably be used against you should your ex-partner want to return to court and get the order amended, so it is always best (in cases where there is a hostile ex) to write a letter or send an email as proof of communication and an alternative offer. Be reasonable, and hope for the best solution. Where your ex-partner is not hostile, you should be able to work out an alternative contact time to see the kids, but be pragmatic as you might need to give a little ground (maybe in agreeing to collect and drop off the kids) in order to make it happen.