Divorce proceedings and the aftereffects can be situations of high emotions for separating couples. It is a big decision that is life changing, which often involves high emotions and feelings. Sadly, for some separating couples this can result in acrimonious situations where exes just can’t find a way forward in an amicable way. Whether you are at the beginning of your divorce, a separation journey, or you separated a long time ago, a situation that is commonly dealt with at mediation is where one parent does not allow the children to spend time with the other parent.
This blog’s title is based on one of the common questions we are asked at DMS. It is often the father coming to us to say that the mother is not allowing him to see the children. It is to be noted that it is not always the mother, and it can be other way round. Simply put, it is more common for the mother to be the primary carer and therefore in the position to allow or disallow contact at any stage. We do deal with cases of mothers coming to mediation in the same predicament, this blog can help you too.
Some writers on this topic refer to something that is known as “malicious parent syndrome”. This is based on psychological theory and describes a behaviour associated with divorce proceeds that some parents use in divorce proceedings and use the children as a way of revenge against the other parent. Dr. Ira Turkat (psychologist) postulates that the “malicious parent” during the divorce proceedings may do a number of things during the separation, including:
- Stop the children from spending time with the other parent as a punitive measure.
- Stop the children from having any communication with the other parent, including indirect contact such as text messages or FaceTime.
- Tell the children things about you to turn them against you, which may or may not be true.
Malicious parent syndrome is outdated and isn’t a term that we use as mediators. Instead, we refer to it as “parental alienation”. This is part and parcel with the above theory. It is something that causes a lot of sadness and distress to both parents and children alike. Unfortunately, it can be a common practice in separation and is something which we often deal with at mediation services. We have written before on how to go about having an amicable divorce and what the benefits of this are on your and your family, we would recommend reading this blog post as a way of finding a way forward with your separation amicably from the outset. Amicable divorce proceedings can prevent parental alienation from happening at the time or in the future, as it highlights the point of coparenting and working together to achieve positive outcomes for the whole family; however, we understand that amicable divorces are sometimes just not possible.
What is parental alienation and why does it happen?
Parental alienation is not legally defined, but it is a term that is used by the law to describe a situation where your children are opposed to coming to see you due to what appears to be views of their own, but actually materialise from manipulation by the other parent. This is something that proves quite difficult to evidence, but is an area that CAFCASS will consider during Court proceedings if you feel that it is present. Parental alienation is often associated with one parent, or sometimes both parents, badmouthing one another to the children and limiting contact where possible. This puts children in a difficult situation which they should not have to manage.
There is not always a clear reason why parental alienation happens. Sometimes, it happens because one parent is trying to use the children as a way of bargaining or negotiating in the courts – some parents come to us and say, for example, that the other parent is “using the children as pawns”. Another reason, as noted above, could be that the other parent is using the children punitively to punish the other parent during the divorce proceedings. Whatever the reason, denial of contact is really difficult for everyone involved.
What can I do?
Your initial feeling might be to make an application to Court so that you can spend time with your children. However, this should be your last resort. The first thing you should do is try to resolve this issue between yourselves. Some people choose to send a letter to the other parent asking for contact to be resumed. You should send this via recorded delivery to keep proof of postage.
If you are not able to settle things without some support, you should consider trying family mediation. The first thing you will need to do is attend a Mediation Information & Assessment Meeting (MIAM). This is a confidential individual meeting with an accredited family mediator where you will get further information about mediation and the process so that you can make a decision to mediate, and the mediator will assess the case for its suitability moving forward. It is important to know that it is a requirement to attend a MIAM before making an application to Court, unless you are exempt. You can find a full list of exemptions here.
Family mediation
After your MIAM, the mediator will send the other parent an invitation to come to mediation. The admin team at DMS will do this on your behalf by SMS, Email, and post, depending on what contact information you have available. If the other parent responds positively to the invitation, they will attend their own MIAM and, as long as the case is suitable, you will proceed to family mediation.
Family mediation is the preferred method of resolving disputes, such as where one parent is denying you access to your children. At mediation, your accredited family mediator will support both of you to have a conversation around the arrangements for your children. Your mediator will facilitate discussions around what the issues are, what your hopes are, and what can be done to move forward so that your children can spend quality time with both parents.
At mediation, you can expect to be in charge of the decision making regarding the arrangements of your children. Your mediator will not make decisions, rather they will empower both of you as parents to make decisions that are in the best interests of your children. In successful mediation cases, your mediator will draft what is known as a Parenting Plan, which will cover everything relating to the upbringing of your children, from where they live, to who they spend time with, to their education and to arrangements for Christmas or other religious festivals. You can convert this Parenting Plan into a legally binding agreement after mediation if you so wish. Mediation allows for an amicable arrangement moving forward.
Court
Unfortunately, mediation sometimes does not go as planned. It may be that the other parent does not accept the invitation to mediate from the outset, or mediation breaks down whilst you are engaging in the process. In these circumstances, your mediator will provide you with a MIAM certificate, which you can use to make an application to Court.
To make an application to Court, you will need to complete the C100 form and ask for a Child Arrangements Order. You can ask for what is known as an Interim Contact Order, so that your children can spend time with you pending the final decision of the Child Arrangements Order. The Interim Contact Order is made between the directions hearing and the final hearing. Where an Interim Contact Order is requested, the Court (depending on the case) may allow for some contact before a final decision is made. Often this is not overnight contact unless the other parent consents to this happening. The other parent may only be open to supervised contact, for example at a contact centre, so this is something to bear in mind.
At the final hearing, the Court will make a decision as to the Child Arrangements Order. This will be based on the requests that you made to the Court in your initial C100 application. In making their decision, one of the primary things the Court will consider is a report that is completed by the Children and Family Court Advisory and Support Service (CAFCASS). This report is based on observations and/or interviews made by a CAFCASS officer. The Court generally makes their decisions based on this report. You can challenge the contents of the report, but you will need to have good reason to do so. You can read more about CAFCASS here.
The Child Arrangements Order that is made will be an enforceable order. If in the future the other parent does not follow what is written in the order, you can return to the Courts to ask for an enforcement order. You should at this stage go back to step 1 and attempt family mediation again and follow that process.
What should I do next?
There is no doubt that this situation is incredibly upsetting and very frustrating for parents who are being denied contact with their children. If you are in a position similar to what has been discussed in this blog then remember there are steps that you can take. If you would like to speak to our team about family mediation then you can contact us on 0113 468 9593, we will be happy to support you.
Also, you might be interested to read more about why won’t my ex let me see my child in our blog.
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