Monday, 23 September 2013

Nervous Mums and Contact: Pre-emptive Planning

When parental relationships break down, and especially when the children are very young, we commonly see mums opposed to contact, with fears that the father is naive and the child may come to some harm in his care. In many cases, we suspect that there may be a degree of post-natal depression at the root of the anxiety. In some, the mother simply wishes to punish the father, or views the child as 'hers'.

That same baby, or toddler, may often spend a night at grandma and grandpas so mum can have a night off. Fair enough... but where the dad is concerned, when mum raises her anxiety at court, the judge can take an overly cautious approach.

We have seen solicitors recommend to their clients that they seek contact in a supervised setting, such as a contact centre, and in some cases pro-actively, and before the mother has voiced any serious concern (we saw this first hand when a mum asked us to go with them to meet their solicitor). The court will often take a cautious approach, endorsing the supervised contact until such time as evidence has been heard (which may take months).

Often there are no 'real' risks. No evidence of the child coming to any harm when the father has cared for the child in the past, but the First Hearing and Dispute Resolution Appointment is often very brief... the legal equivalent of triage, obscuring the fact that the waiting list to resolve the contact dispute can take many months (and in some cases years).

In the more extreme cases, we have had dads come to us, where contact has been in a contact centre for a number of years, despite there being no real welfare concerns.

When you step back and look at parenting objectively, it isn't rocket science, and all parents start out as amateurs (and if we're honest, we remain amateurs dealing with new situations all the time). There would be outcry if new mums were told that they couldn't remove their baby from the maternity ward until there had been three months of contact at a centre, where 'responsible adults' were available to help, or supervise and report on how mum managed child care, and the mum had to prove her capability before the state stopped its monitoring and restrictions.

What help can be given to the poor old dad who's faced with a mum refusing contact, where the situation seems completely out of his control, and the solicitor's letter drops on his doormat offering contact in a centre, or under mum's beady gaze at her house, or not at all... and telling him to seek legal advice.
  1. If an offer for contact is made before matters get to court, accept it. Ensuring you continue to see your child takes priority, as does keeping the bond intact. If mum is squarely opposed to unsupervised contact, it's likely the matter will have to go to court for resolution, and that may take some time, as you have to attempt mediation first. Better to have some contact, than none at all.

  2. Acknowledge the solicitor's letter. Say something complimentary... 'I know Stephanie is anxious, but I also know we both love Oscar, and I hope that we can work things out together.' Go on to suggest mediation, and be pro-active in organising it yourself. Saying the mum is a good parent in that letter doesn't weaken your position, and if fear of a battle over residence is exacerbating her anxiety, that acknowledgment may draw some heat out of her fears.

  3. There will be a delay as you attempt mediation first, and then if this fails, a further wait while you apply to court and wait for the First Hearing and Dispute Resolution Appointment (the first hearing at court). Use this time to your advantage...
One of the most effective things you can do during this time frame is to book yourself on an early years first aid course. Courses are run by St John's Ambulance and by the British Red Cross. The St John's Ambulance course is run over two days, and costs £105(+VAT), while the British Red Cross courses are run over a single day and cost £37.50(+VAT). Take back a little control... you can be booked onto a course in 10 minutes without leaving your sofa!

The day before the First Hearing and Dispute Resolution Appointment, have a position statement prepared with your certificate in early years first aid attached to it. Make sure it's under the judge's nose on the day of the hearing! An alternative is attending a parenting class.

Going on one of these courses helps in a number of ways:
  • it may lessen the mother's anxiety (if anxiety rather than hostility is at the root of your contact being restricted;
  • when the matter goes to court, regardless of whether the mother is hostile or anxious, you present yourself reasonably, as someone who has acknowledged mum's anxiety, and taken reasonable steps in the hope this makes mum feel less anxious;
  • you show the court your commitment to being involved in your child's care;
  • you can present the court with evidence, at that first hearing, to show you are capable of dealing with emergency situations, and better qualified than most parents!
  • you give the judge some added reason to 'nudge' the mother to accept unsupervised contact, and you can suggest to the judge that having had sight of this evidence there are grounds to make an interim contact order there and then;
  • regardless of the tactical advantages, for a modest fee you learn skills which will reassure you, may help save your child's life one day, and the courses are quite interesting.
The facts of the case, and the nature of any allegations will of course affect whether the court is prepared to agree unsupervised contact from day one. Supervised contact can be helpful sometimes, in reassuring the court that the father presents no risk to the child, and in this, can be a progressive step forwards.

It still surprises me though that we see children's contact being restricted when the allegations are minor, and the issue is little more than mum being anxious at being away from the child. For mum, that anxiety may be real, even if the risks aren't. In 2008, Eleanor Fowler of NYAS gave the statistic that 75% of cases referred to their contact centre went on to have unsupervised contact... leaving the question unanswered as to the necessity in the first place.

The dad can help himself by taking a pro-active and positive approach while avoiding the pitfall of getting stymied in counter-allegation, outright warfare, and pointless arguments over gender bias. Deal with the issue... address the allegation... offer a positive solution and move on! The court will likely favour such an approach.

I'll leave the final words to Mostyn J, in the case AR (A Child: Relocation) [2010] EWHC 1346 (Fam):

"On the facts of this case it is clear to me that supervised contact would only have been appropriate if there was the clearest and most compelling evidence that in some way S's best interests would be jeopardised by unsupervised, normal contact. Given the terms of the Strasbourg jurisprudence to which I have referred, it is almost as if there is a presumption in favour of normal contact and it is for those who say it is inappropriate to prove by clear evidence why this is so."

By Strasbourg jurisprudence, Mostyn J refers to the European Convention on Human Rights, and specifically, the right to family life. For the legal advisor (and a number of judges!), it's worth reminding ourselves that a decision to order supervised contact must be supported by evidence (Re M (Contact: Restrictive Order: Supervision) [1998] 1 FLR 721), and that if there is sufficient information available to the judge for them to order contact, despite the possibility of their granting a different order at the end of a final hearing and having heard evidence, the judge may make an order for interim contact (Re D (Contact: Interim Order) [1995] 1 FLR 495).

That certificate in early years first aid, along with other evidence of your involvement in pre-separation parenting is information which may assist the judge in granting your child normal contact (and save the child, you and the court from months of wrangling and review hearings). Don't go to war, think outside the box!

Links to guides are included in this blog. You may also find our guides on applying for contactshared residence, interim contact case law, and false allegations of use.