General guidance 3

From FamilyLawWiki

Your Rights as a Parent

1. The law is simply stated. Once a couple has separated, and the parents live in different homes, they are regarded differently by the Courts:

(i) the Resident Parent, who continues to have the child most or all of the time, still has all the normal - and very powerful - rights over the children.

(ii) the non-resident parent (or NRP) who no longer lives in the family home has:

   * no significant rights
   * no presumption of significant rights

2. The NRP only has such rights as the resident parent, or the Courts, can be persuaded to grant the NRP

3. The Court operates on the following basis:

   * that the only right possessed by the NRP is not to be deprived of all contact (i.e. every last vestige of seeing the child) in the absence of a good reason

4. The consequences are:

   * a resident parent who is stopping almost-all-contact does not need a good reason
   * almost-all-contact can be stopped for almost no reason
   * even a perfect parent, who has raised the children as a full co-parent for years, has no entitlement to anything more than absolutely-no-contact
   * there is no right of reasonable contact
   * there is no presumption that there should be reasonable contact

5. The benefit of the child is merely a label applied to a case after it has been decided, i.e. after it has been decided on the premise that all material contact can be stopped for no material reason. The phrase itself the benefit of the child - has no actual meaning.

6. The legal framework set out above comes into force at the actual moment, or nanosecond, that the NRP leaves the family home, closing the door behind him/her.

7. At that instant, the departing parent becomes an NRP, and, at that instant, he/she loses all significant rights in his / her children. At that moment, the framework set out above comes into force - and this page can be profitably re-read starting at Item 2 and concluding, especially, at the last sentence of Item 5.

Practical Advice

General Framework

1. The practical consequences of the legal framework, described above, are that a litigated contact dispute is trial of strength conducted between two parents, one of whom has no rights.

2. It is a necessary result that all contested applications for more contact tend towards failure. Applications are only likely to succeed if conducted with determination, fortitude, guile, skill and care. A court action can fail at any time for any reason, no matter how frail.

3. In opposed cases, contact will generally have to be restored by a series of increments in a sequence of cases extending over a couple of years.

4. The Court process, in general terms, sweeps parents away from their children at say, a rate of (10) knots. The only way to make progress is to swim upstream at a rate, say, of 11 knots. In practical terms, this means that it is the applicant who must make the running, and who must labour hard to stay where he/she is, and who must labour even harder to make significant progress.

5. The general pattern of court cases (if not taken firmly in hand) is deferral, i.e., to roll the case forwards - still unresolved to another hearing.

6. The issue of proceedings does not generally make things start to happen. More usually, it stops things from happening, i.e., it tends to freeze contact at whatever level it was at before the issue of proceedings - until the main hearing which is likely to be a good six months distant.

Things to Do

1. Never ever give up.

2. Only go to Court as a last resort.

3. Do everything you possibly can to maximise the level of contact before you issue legal proceedings.

4. Never, ever write anything - letters or email which is hostile, aggressive, confrontational or critical of the resident parent. Any injudicious phrasing will be held against you.

5. Never send any written communication to the resident parent about contact arrangements without the most careful consideration. Preferably, look at it again the next day - and rewrite it until the communication is bleached of anything which might be considered confrontational. Steer a wide berth from late-night phone calls.

6. Always accept whatever contact is on offer, no matter how low - or absurdly low. If you accept a two-hour visit, you have established that two-hour visits are workable; if you refuse a two-hour visit, the resident parent can argue that two hour visits are not workable and should not happen.

7. Do absolutely everything possible to make contact work, i.e., to have no arguments, no recriminations, no razzmatazz at handovers and no harsh words. Do not be late. Do not do anything that crosses a line without the most profound consideration. Do not indulge in tit-for-tat.

8. Always remember that the Court's only concern is whether the contact has worked i.e., been glitch-free and not with whose responsibility it did not work. If contact is said to be causing difficulties, then even if those difficulties are caused by the resident parent, your case will become a difficult case where the Courts will be far less likely to intervene on your behalf. Make contact work.

9. Do nothing to suggest to the resident parent that your life is going well. This is not the time to show off. Do not turn up for contact with a glamorous new partner, or in an expensive new car, or talk about holidays, successes at work or salary rises. They will fuel the dispute.

10. Never make allegations of unfitness against the resident parent.

An allegation by an NRP against a Resident Parent will lead either to a counter-allegation (theirs will be entertained, yours will not) or to the inference that you (as the maker of an allegation) are yourself the unfit parent because you sought to undermine the all-important resident parent.

Before Leaving Home

Try to establish a pattern of contact before you leave home. This means having the children while the other parent is not there. Ideally, establish a pattern where you take the children out of the home to somewhere else for as long as possible, especially overnight. Keep a brief diary of any such trips (times, date, place only).

Before Issuing Proceedings

Be as nice to the resident parent as possible.

Take contact to the maximum the resident parent will allow:

   * go to mediation
   * consider using any remaining joint friend(s) as avenues of conciliation

If the maximum the resident parent will allow does not include overnight visits on a regular and substantial basis, you should go to law in the effort to secure reasonable contact.

Remember that your enemy is time: and delay. If you do have to go to law, and the sticking point reached by the resident parent is to low, the quicker you start legal proceedings the better.

Never fall for the ruse, Dont push things, lets allow things to cool down, stop pestering me, try again next spring / summer / autumn. A standard ploy by a resident parent is to persuade you to give up and then turn round and say He/she wasnt interested in the children. He/she didnt bother to see them all spring / summer / autumn. You must be assiduous in pressing you cae without, of course, being oppressive. There are enough delays ahead without your adding in delays of your own. The difficulties in restoring reasonable contact which may exist today will be greater tomorrow.

After Issuing Proceedings

1. In very general terms, the Court will only allow you to have - after the hearing - slightly more contact than you had before the hearing.

It is a rare for a case to go from, say, a two hour fortnightly visit to full alternate weekends in one bound. This kind of leap will generally take several cases. Each completed case takes about a year, so the restoration of contact can take years.

A consequence is that you should do everything possible to increase contact before the hearing, i.e., during the run-up to the hearing, which is likely to last for several months.

2. The Court process is, in general terms, a system for giving legal authority to the recommendation in the CAFCASS report. This report which takes several months to prepare, is often available some time before the hearing. The Court will be minded to rubber-stamp the CAFCASS recommendation. This means that any legal strategy that focuses on the hearing itself is liable to fail since the hearing s liable to take place several months after its outcome was actually decided by the CAFCASS officer. Hence the governing considerations are:

(i) to maximise contact before the hearing (as per 1 above)

(ii) to do everything possible to prevent CAFCASS from writing a bad or foolish report

(iii) to do everything possible to persuade CAFCASS to write a good or sensible report

3. Do not expect anything in the Court process to be true, or to be subjected to conventional or meaningful scrutiny.

4. Do not get drawn into extended rebuttals of anything said against you. Court cases generally proceed upon a cloud of untruths and vapid recriminations. These should be dismissed in a single sentence. Try to keep all documentation short. The perfect document is no longer than a single page.

5. The five Circles of Hell are:

   * supervised contact
   * unsupervised contact in a contact centre
   * short sporadic visits
   * whole-day-contact but no overnight stays
   * sporadic overnight stays

6. Your objective is to attain the next level up: substantial overnight stays.

7. Each of the five categories (at 5 above) above should be regarded as an individual bond or restriction, which the resident parent may seek to impose, and which you should seek to undo. Each may take a separate case to remove.

8. The primary battle is generally over the first overnight contact. Once that is established, the war is essentially won. It is generally possible to move on from the first overnight to substantial overnight contact in the course of a year or so.

9. Most cases for reasonable contact, if well conducted, eventually succeed. Never expect it to be easy. It may take several years. Although most cases eventually succeed, some do not.