We’re separating, why can’t I see my children?
My colleagues and I are so often asked by parents “Why can’t I see my children?” following separation. They are either not being allowed to see their children or are having their time with them restricted.
Dealing first with the law and your “rights” as a parent, please be clear that you have none, at least none that relate to seeing your child. I appreciate that this appears to be fairly blunt advice from a family lawyer. However, it is important to understand that the Children Act 1989 provides that the courts must consider the welfare of the children first and foremost. They have a right to a relationship with each of their parents, save in exceptional circumstances, and those parents have a duty to enforce those rights (via appropriate steps that I shall describe below) on their behalf.
The good news is that the courts will be keen to ensure that the children will be seeing you (if it is suitable to do so) and seeing you on a regular and routine basis. The difficulty is how to achieve that when you have a former partner or spouse that either wants you to disappear or wants to control every aspect of your time with the children and seeks to restrict it as a way of doing so? Also, most people don’t want to end up in court and want to come to a sensible compromise.
My colleagues and I will usually advise first that a very carefully drafted letter is sent, setting out the proposals and suggestions as to how they might be achieved. We have long found, over many years of experience, that an aggressive approach rarely reaps rewards. Having said this, the most entrenched position cannot always be shifted with a gently persuasive letter. If your former partner or spouse will not budge, and mediation has been attempted and failed, then court proceedings may be the only option.
It is important to be aware that even if court proceedings are issued, your lawyer and your former partner or spouse’s lawyer will be doing everything they can along the way to help you to reach an agreement. It is rather unusual for such cases to end in a contested final hearing. The judges will also be persuading you and the other parent to narrow the issues and compromise where you can.
Whilst the process should work, and (barring any evidence of harm) you will be having a relationship with your children again, there can be long delays which, on occasion may assist the refusing parent’s position because the children may become alienated against you or come to believe you don’t want to see them. This can be one of the most difficult issues to overcome. It is for that reason that my colleagues and I will always advise that you do not delay if your time spent with your children is being restricted or refused. The quicker you move the more likely it is you will prevent a new status quo (without you) evolving.
– Chartered Legal Executive, Katie Nightingale
