Time Is Precious

As all family practitioners dealing in Private Law Children matters know, time really is of the essence.  The status quo, particularly in private law proceedings, is something that any tribunal is reluctant to alter if it has been in place for a period of time.  The arguments are well rehearsed; the children are comfortable in their current surroundings; they have a routine they are used to; to change the arrangements now is not in the best interest of the child. All credible and well-intentioned sentiments.  However, given the delays which permeate the system, is it time to reduce the impact such arguments can have on decisions?

An unfortunate reality is the growing number of allegations which are being made against one party or the other in many family break-ups.  When the allegations are of abuse, mental, physical, sexual or even controlling behaviour (financial or otherwise) the likely outcome is a cessation of contact with the child for the accused party.

Has this now become a tactic in some cases?  Unsubstantiated claims, which may never have been raised before and will prevent contact until the fact-find establishes the truth on the balance of probabilities, are at risk of becoming a tool for the resident parent to create a status quo.  Due to the lengthy delays that are now common practice at most if not all family courts, the time without contact for a potentially innocent party can lead to a plethora of problems later on in proceedings.  The main one of these problems usually being the truncated growth of any relationship with their child.

The question then becomes how to avoid this situation.  Clearly, the main focus of the proceedings is to establish what is in the best interests of the child; the obvious but illusive answer is to speed-up the process to the fact-find hearing.  It may be that we have to start thinking about things like supervised contact whilst waiting for an outcome. It is a question of priorities; which is more likely to be detrimental to the health and well-being of the child?  A complete cessation of a relationship with someone who has played a role in their life or a change in the circumstances of the relationship?

If the allegation is so serious that a “no contact order” may be considered, then the option mentioned above may not be feasible.  If the likely outcome is some form of contact then surely it makes more sense for the contact to continue throughout than for it to be unilaterally stopped.  In such circumstances, the explanation to the child as to why contact has stopped is left to the party making the allegations.  It is easy to see how this may harm any future relationship with the accused parent.  The status quo argument can be tempered by an ongoing level of contact for the accused; and whilst it will undoubtedly be difficult whilst the issues are cleared up, if the allegations are proved false, the risk of the parent making those allegations being able to use them as a tool to gain the advantage in litigation is mitigated.

In short, even where there are allegations of serious nature made against the non-resident parent, contact should be maintained wherever possible; litigators and advocates should remember that the clock is ticking.