Restarting contact after it stopped, and reaching shared care

The legal issue

The parents separated around the time their child was born. The parent the child did not live with built up regular, unsupervised contact over a period, including time at their own home. There was no allegation and no welfare concerns standing in the way of it.

Contact was then stopped entirely by the other parent after a disagreement about the child's day-to-day care. A long period passed before the child saw that parent again.

The question for the court was what arrangement served this child's welfare, and how to restore a relationship that had been interrupted for no welfare reason.

The law this rests on

• Children Act 1989 s.1(1) - the child's welfare is the court's paramount consideration.
• Children Act 1989 s.1(2) - the court is to have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
• Children Act 1989 s.1(2A) and s.1(2B) - a parent's involvement is presumed to further a child's welfare unless the contrary is shown, and involvement is not any particular division of a child's time.
• Children Act 1989 s.1(3) - the welfare checklist, including the likely effect on the child of any change in circumstances.
• Children Act 1989 s.1(5) - the court is not to make an order unless doing so would be better for the child than making no order at all.
• Children Act 1989 s.8 - child arrangements orders regulate with whom and when a child is to live, spend time or otherwise have contact.
• Children Act 1989 s.13(1)(b) - where a child arrangements order that says with whom or when a child is to live is in force, the child may not be removed from the United Kingdom without the written consent of every person with parental responsibility or the leave of the court.
• Children Act 1989 s.13(2) - a person named in a child arrangements order as someone the child is to live with may remove the child from the United Kingdom for a period of less than one month.

How we approached it

The first job was to get the case in front of the court quickly. Children Act 1989 s.1(2) says in terms that delay is likely to prejudice a child's welfare, and where contact has already stopped, every month that passes changes the facts the court will be deciding on. Delay was not a neutral background condition in this case. It was the harm.

The second was to be precise about what the dispute actually was. No allegation and no welfare concern lay behind the stopping of contact; the trigger was a disagreement between the parents about the child's day-to-day care. Once that is clear on the papers, the presumption in s.1(2A) does real work, because there is nothing on the other side of it to displace it.

Third, the application sought a graduated arrangement rather than an immediate return to the previous pattern. A child who has not seen a parent for a long time needs that change handled carefully, and s.1(3) requires the court to weigh the likely effect on the child of any change in circumstances. Asking for something the child could manage was more persuasive than asking for everything at once.

The same application also dealt with foreign travel, so that a settled arrangement did not simply become the next thing to dispute.

The outcome

The child was reunited with the parent whose contact had stopped, and the court went on to make a child arrangements order providing for shared care, with provision allowing each parent to take the child abroad.

Outcomes of this kind turn entirely on the facts of the individual case. Nothing here is a prediction or a promise about any other case. Restarting contact after it stopped will be considered on its individual facts.

What to take from this

• Delay is not neutral. Children Act 1989 s.1(2) treats it as likely to prejudice a child's welfare, so act quickly if contact stops.
• Stopping contact without a welfare reason is a decision the court will look at closely. A disagreement between parents is not the same as a risk to the child.
• Where no welfare concern is established, the presumption of parental involvement in Children Act 1989 s.1(2A) is difficult to displace.
• A graduated return usually persuades a court more than an immediate return to the old pattern, because s.1(3) requires it to weigh the effect of change on the child.
• Deal with foreign travel in the same order. Children Act 1989 s.13 sets out when consent or permission is needed, and s.13(2) allows a parent named as one the child lives with to travel abroad for less than a month.
• Keep a record of the contact that was happening before it stopped. An established pattern is strong evidence.