Help! They’re ignoring my children’s wishes!

`I will support contact if my children want it’

We hear this a lot. After all parents need to listen to their children – because they’re people and have wishes and feelings like all of us don’t they?

But…

  • `I will support my children only eating chocolate if they want to do that’.
  • `I will support my children not going to school if they choose that’.
  • `I will support my children not going to bed if they choose to stay up all night’.

And when this is said the usual response is That is totally different and a ridiculous comparison’ or `If my children didn’t want to go to school I would find out why rather than just send them’.

Yet not many people would defend their children living off sugar, not getting an education or playing at 3am on a school night…but they would when it comes to not spending time with the closest relative they have.

Wishes and feelings

Children are subject to the Children Act. Which means the law applies to them. And of course…it applies to their parents too. It’s worth pointing out that it’s been acknowledged in court this means both parents and children sometimes have to do stuff they don’t want to do. Contact with a separated parent for example.

The main concern of the court is The best interests of the child’ and not `What the child wants’.

The Children Act applies to anyone under the age of 16 (in most cases – sometimes it’s 18). So strictly speaking if you want to know at what age a child can make their mind up about contact or anything else…that’s the answer.

Complications, complications

As a child gets older and their ascertainable wishes and feelings get clearer/stronger what they want also gets more significant. But until they’re 16 what they want remains just one of the 7 factors taken into consideration by the court when it makes an order – aka `The Welfare Checklist’. A progressively more important one…but still one of 7.

Or another way of looking at it…the older they get, the more likely what they want is liable to be able to `tip the balance’ when it comes to a court making a decision.

Magic number

But there is no magic age when you can say that what a child wants will make or break any decision. It’s theoretically possible that 15 1/2 year old will be subject to an order they’ve said they don’t want. Or for the 6 year old’s wishes to swing it.

Of course – the court has a wide ambit of discretion. You may well not agree with the court about how much weight your child’s wishes and feelings should carry when it comes to sorting things out.

So if you’re going into court and you’re relying purely on what your child is saying…or you think your child is saying you’re ignoring 6 other factors that the court will look at when it comes to making a decision. It doesn’t matter if a school or other agency plucks an age out of the air says it will listen at a certain age – it doesn’t trump the Children Act. This includes Gillick Competency by the way – it’s not relevant here.

How to lose friends and alienate people (in court)

Fallout Shelter sign

Mutually assured destruction – when destroying the other side is more important than your own survival

We often tell people that family law is more of an art than a science. There are few guarantees. Lots of variables. And a hefty dose of catching the right judge at the right time.

But there are a few sure fire ways to help or hinder your case.

Today. An object lesson in what to do if you really want to shoot yourself in the foot when you make an application.

Number one: Give up

The absolute best way, guaranteed to achieve nothing. Say the courts are biased, that they won’t enforce their own orders, listen to what your mates say and decide to save yourself the hassle. It doesn’t matter if these are all true.

But if you only do one thing to fail…this is it.

Number two: Talk about your case on social media

It’s a winner! You’ll give your ex ammunition to use against you (and his/her solicitor too), possibly give them a heads up against what your situation is and allow them to spend the entire hearing discussing this rather than stuff like contact. It’ll irritate the court too. It may even cause you to face contempt of court charges.

…but you at least you can say you had your say.

Number three: Label your ex as a narcissist or a parental alienator

You may be in court to discuss contact and not your ex partner’s mental state. You may not be a qualified psychologist, nor appointed by the court or an impartial figure. But you can use the time to pin a label on your ex.

Bonus points for taking in news clippings to back up your views but the court won’t be interested in them.

Number four: Fighting fire with fire/telling the court like it is

You’ve been labelled as angry, aggressive and contrary – and to show the court this isn’t the case you’re going to fight everyone. Every step of the way. You’re going to counter allegation with allegation. Do things `on principle’. Do stuff to see how your ex partner likes it. Tell the court what you think of it.

You won’t get contact or time with your children…but at least you didn’t bow down to anyone.

The Jerry Springer-style wrap up

The family law courts are full of angry and upset people.  It’s quite possible that you’re one of them and reading this has made you angry and upset.

But the courts are set up to deal with angry and upset people…it’s something they’re really good at doing. As always – it’s all about focus. What are you in court for in the first place?

Think carefully before you act.

Enforcement apps don’t work

Enforcement applications don’t work.

I hate to be the bearer of bad news and all. Because it’s a pretty grim statement isn’t it? Enforcement applications quite simply don’t work.

The ex won’t talk to you. They won’t respond to emails, texts, letters or anything else. They didn’t turn up to mediation. Or maybe they have – and they have advised you that you’ll never see your kids again and if you don’t like it you’ll have to go to court.

Which makes it nice and simple. Hey ho! It’s off to court you go.

You’ve paid your £215. You’ve possibly paid a solicitor. Or your friendly McKenzie Friend. You’ve taken the day off work, possibly driven a long distance to a hearing. Where you have convinced a court to make an order for contact. Something. Anything.

And then after all that the ex decides to break the order.

But that’s OK. Sorta. OK, OK, it’s another £155 but hey…the ex will get a rocket when you put that enforcement application in won’t he/she? Eh? Eh? Contact will resume, order will be restored and it’ll be all good.

Nope.

Statistically you have around a 1.5% chance of your enforcement application succeeding. For the non mathematicians among you that’s around a 1 in 66 chance. Chances are you’re going to be on of the 65. So sorry…

Loo RollYou’re stuck with an order that cost you £215. For that price you’d get around 200 rolls of Andrex and they’d be more absorbent than the 2-3 pieces of A4 you have.

Enforcement doesn’t work.

What more typically happens is that your application morphs (or is hijacked if you want to be uncharitable) into a variation by your ex. It’s a truth universally acknowledged by court staff. Here’s a list of what happens:

  1. You get a court order.
  2. The ex breaks it.
  3. You apply for enforcement.
  4. The ex says he/she broke the order because it wasn’t working.
  5. The court varies the order (quite often with a reduction of contact).

If I were a horrible cynic as opposed to the optimistic, philanthropic soul that I clearly am I’d say something like `Well – if you are a resident parent who is hostile to contact and don’t want to pay the fee yourself all you need do is break the order and then get a variation to reduce the level of contact closer to what it is you want (i.e. none)’.

But I won’t. Because that’d be monstrous wouldn’t it now?

So are we clear?

Enforcement applications don’t work so isn’t worth making them is it?

Nope. You absolutely should go for enforcement.

Whaaaa?’ I hear you say. `What’s the point. You’ve said that it’ll cost me money for an application that almost certainly won’t work and I’ll likely end up with an order that provides less contact than I had before haven’t you??? Make your mind up!’

It’s a fair point.

Enforcement applications are still worth making.

Broken ChainThere are very good reasons why you should make an application for enforcement if the order is materially broken.

  1. If you have no or reduced contact you likely have nothing to lose (apart from the application fee, time, effort and stress of course). Your options are to suck it up or do something.
  2. If you do nothing you’ll likely be told down the line that you were obviously A-OK with it. Because if you weren’t you would have made an application wouldn’t you? The ex will be able to argue that it was an agreed change of arrangements because you’ve come to an amicable agreement.
  3. If you do so you’re making it clear you don’t agree with what has happened and you are building a narrative that court orders are broken. And that the existing arrangement needs changing. Possibly a change in residence because the current resident parent can’t be trusted to support contact?

In short it’s absolutely worth making an applications for enforcement. But do it in the knowledge that you’re doing it as part of a long term strategy to get the order that is in the best interests of your child. In the short term you’ve got to be prepared to keep banging your head against a brick wall or just giving up.

What’s it to be punk?