Access to children

What is the law concerning access to children?

Cases regarding access to children are argued on the basis of what will be best for the child rather than what the parents consider fair or in their interests.

Usually, a court will allow contact between a child and parent, but the extent of this contact is contingent upon many different factors. The law encourages parents to keep in contact with their children and contact is usually only restricted when it is in the child’s interests.

The Children Act 1989

The Children Act 1989 states that any decisions made about a child will be made with ‘paramount consideration’ given to the child’s welfare. Factors to be taken into account include:

  • The child’s feelings. The more able to form an opinion a child is, the more attention a court will pay to these wishes. Although a child’s age will be a major factor, there is no set age for when a child’s own feelings become more important, so this is open to contention.
  • Any likely effects of changing a child’s circumstances. The court will try to ensure a child’s life is disrupted as little as possible.
  • The child’s sex, background, religion, age, any special needs (either physical or cultural) and many other characteristics can be deemed relevant and contestable factors by a court when it comes to deciding residence.
  • When deciding residence, the court will want to be convinced by a party that they can provide for the child’s physical, educational and emotional needs. This will cover material effects (such as childcare equipment), accommodation, food and love and affection.
  • The court will consider how likely a child is to be abused by a carer when making any decisions. Abuse can be sexual, physical or emotional.
  • Parenting skills come into consideration: does a parent have all the skills necessary to look after a child? Are these abilities liable to impairment for any reason (such as addictions, character traits or lifestyle)?

Domestic violence/abuse

All access cases should screen the parents for domestic violence. If either party alleges that domestic violence has taken place, the court may order the Children and Family Court Advisory and Support Service to investigate and produce a welfare report.

Any welfare report should take into account:

  • the child’s personal wishes;
  • the safety of each party and the safety of the child during contact;
  • the harm suffered by the child;
  • any harm that the child might be susceptible to if contact is awarded; and
  • domestic violence experienced by the child or either parent.

Access to children after a common law marriage

A child’s right to contact with its parents does not depend on whether or not the parents were properly married. Children of a common law marriage should also have contact with both parents. If the separated partners do not make informal arrangements for access to children, then a court can be asked to decide provisions. Usually the court will allow contact between child and parent, but exceptional circumstances may prevent this from happening.

Access to children for non-parents

Access can be granted to anyone, including grandparents, aunts, uncles and siblings. Anybody who has had a close relationship with the child can apply for contact.

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For more information on:

  • Access to children for same-sex couples
  • Residence
  • Contact
  • Contact orders
  • Refusal of contact
  • Mediation
  • Legal aid