Steven Wade is a family law advisor (McKenzie Friend) with nearly 20 years of experience helping people represent themselves in court. Having been through the system personally and supported thousands of others since, he knows what it’s like to face the stress, confusion, and pressure of doing it alone. This blog shares practical insights that empower you to take control of your case — without the legal jargon or the hefty solicitor’s bill.
Help – my ex is denying me access to my children!
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Help – my ex is denying me access!
- Introduction
- Why do people deny contact?
- What’s the legal position on denying contact?
- When can I deny contact?
- Why are most of the parents denied contact men?
- What can I do if my ex denies me contact?
- Conclusion
Introduction
It’s a very common scenario. You almost certainly know someone who doesn’t have a relationship with their child because an ex partner is preventing it (or controlling it). Chances are they’re men – I’ll go into why that is later in this post – but it also affects women.
If you’re being denied contact you can feel a) upset b) angry c) confused d) scared (or a combination of these).
It is very common for someone who is denied contact to want to `not rock the apple cart’ (although chances are that by the time this has happened this hypothetical cart is on it’s side, on fire and the entire load of apples are rolling down the hill). It’s common to think that the parent who is denying contact will calm down, be reasonable and things can carry on as they were before.
But if it’s a case that it’s not the first thing this has happened and contact seems to take place for reasons other than the best interests of the children a court application may be the best when it comes to the long term. Stability and routine is important for your children and it also means you don’t have to plan your life around contact that happens sporadically or not at all depending on the whims of an unpredictable ex partner.
Why do people deny contact?
A whole host of reasons. They do so because they:
- Feel the children aren’t safe with their ex partner (citing the places they’re being taken, previous incidents they aren’t happy with, the people they’re liable to come into contact with, the activities the children will be participating in).
- Don’t trust their ex partner to return the children afterwards.
- Want to meet their ex partner’s new partner before they will allow it.
- Have plans for the children when they’re due to be with the ex.
- Don’t value the children’s relationship with their ex.
- Don’t trust their ex partner to take care of the children’s physical needs (i.e. food, medical care, hygiene, etc.)
- Want to cut their ex partner out of the child’s lives.
- Believe they have sole rights to decide what the children do.
- Have a legal right to do so.
- Want to punish their ex partner.
There are many other examples. The parent withholding contact may feel entirely reasonable in doing so for all the best reasons. They may be merely be justifying their less-than-noble motives for stopping a parent and a child spending time together.
What’s the legal position on denying contact?
Unlike much in (family) law there is a very simple and straightfoward answer to this:
Denying or controlling contact between a child and a parent who has PR for the child without a court is acting without any legal basis.
It makes perfect sense when you think about it. Parental Responsibility is why school staff can’t suddenly decide they’re not handing your children over to you at the end of the day. It means Social Services can’t just knock on your door and take your kids off you. It means a stranger on the street can’t walk off with your children and be their `new mummy or daddy’.
The same goes for ex partners – whether you trust them or not.
It’s important to point out that nothing other than a court order that specifically modifies or restricts Parental Responsibility affects this at all. Not residence, shared residence, prohibited steps or any other kind of order makes any difference or confers powers to one parent over the other.
When can I deny contact?
Again, there’s a short answer here:
When you get a court saying so.
If you are concerned that your children’s best interests aren’t being served with current arrangements and you cannot come to an agreement with your ex partner you may need a court order (but you’ll need to try mediation first).
The real world isn’t as black and white however. What if it’s a Friday evening and you learn something that gives you genuine concern that means you feel you have to deny contact for the sake of your children’s safety?
In that scenario – deny contact and take the matter to court first thing, Monday morning. Do this because your children’s safety is paramount and is therefore more important than anything else you were planning.
A court may see contact denial but doing something as soon as you can as reasonable – but less so if decided to not do it/leave it a few weeks/go on holiday or shopping first.
A more typical scenario when it comes to contact denial however is the denier will stop contact and wait for the other parent to take the matter to court. While common…this isn’t the correct of way of doing things and you may well be asked `On what legal basis did you deny contact?’, `If you had genuine concerns why didn’t you alert the appropriate authorities?’ or `Why didn’t you make an application to address the extremely serious concerns you say you have?’
Why are most of the parents denied contact men?
Because women tend to be the primary carer of children. It’s as simple as that. Statistically children of separated parents are likely to spend more time with Mum than Dad. They’re more likely to be cared for them more by Mum than Dad. And that happens because Mum tends to be the primary carer before separation and the situation not changing after it happens.
The more cynical people in family law will also say `possession is nine tenths of the law’.
In short – whoever has the children tends to keep them. And as I say above, that tends to be mothers. As children thrive from stability and routine it means changing things like who is the primary carer, the current arrangement (often effectively agreed by individual mothers and fathers right up until the point that a father is not happy with a situation) is a big ask.
The courts work on the `no order’ principle too. Which means a judge must not make an order concerning a child if they consider that to do so would be better for the child than to make no order.
Or in other words, a judge will only make an order if they think not making one will make the situation worse.
Which in this context means once who the primary carer is is settled…it’s hard to change that. This in turn leads to a primary carer (usually mothers) being reasonably assured that breaking a court order is unlikely to change the situation. This is reinforced by the fact that family courts are notoriously reluctant at enforcing even their own orders.
What can I do if my ex is denying me access?
If you are reading this because you’re being denied contact, the absolute first piece of advice is `don’t hang around’.
As I say above – the longer a situation is settled the harder it is to change it. Leave it too long before deciding you have to do something will often lead to you being asked when you (eventually) take it to court:
- If you weren’t happy with the situation why didn’t you seek assistance sooner?
- If you don’t think the current arrangement is in the best interests of the children why did you do nothing?
- Why do you want to disrupt the children’s new established routine?
If you have an existing court order – you may need to put an application for enforcement in (even though it is almost destined to fail). If you don’t have a court order or your case finished a while back (it depends on the situation and how far back) you may need to put a fresh application in.
It depends on what is happening in the situation too.
If your ex partner has said `You’re not seeing the kids next week even though we agreed it’ you may be hard pressed to have legal remedy (although if it keeps happening an application may be appropriate). if it’s more like `You’re not seeing the kids until I say so/unless a court orders it/until you give me money’ an application may be the best court option. Often – waiting for your ex partner to change their mind will achieve nothing positive.
Every situation is different however.
In a typical scenario when it looks like contact is not happening until an application is made you are probably still going to need to attempt mediation even if you are 100% sure your ex is going to refuse/not turn up/drag things out/not engate meaningfully. In many situations it is worth attending a MIAM (a `Mediation Information and Assessment Meeting’).
A MIAM is the only legal requirement prior to making a court application (unless it’s an emergency or domestic abuse is a factor).
Mediators will be keen to see if they can find an arrangement that works for all parties, will avoid a court case and potentially save litigants an expensive and painful legal case. Mediation is definitely preferable to a court case. But there’s a problem:
In our experience, it doesn’t look like it works.
The contact denying parent has an arrangement they are often happy with. The other parent isn’t happy with it. The longer the situation remains in place, the stronger the status quo grows and the more difficult it is to change things.
For this reason it is often a case of `Organise a MIAM and fill in the C100 form at the same time so you’re good to go as soon as you can’. A mediator can confirm on your C100 that you have attended a MIAM (the legal requirement) – although some will be reluctant to do so and a few may even make a show of refusing, saying your ex partner needs to be involved to do everything to avoid a court case.
If you are sure your ex partner will attend and engage – mediation should be attempted. But if you are sure they’re going to refuse, going to drag things out, going to refuse to engage meaningfully, don’t hang around.
Complete the form and return it to the court ASAP.
Conclusion
As always, there are few `one size fits all’ things I can say that will answer every question you have about your situation. There are many, many factors you are going to have to consider before you go to court – because it is, quite rightly, a serious undertaking that should always be the last resort.
The same is true if you are the one who is denying contact.
Both are huge – and can cause more problems than they solve. So if at all possible – communicate with your ex and come up with a solution!
Finally? We know what it’s like to feel utterly stuck in this situation. After almost 2 decades of assisting with the sort of issues described in this post we are experts at changing things for our clients. To do that? Book an Ask Me Anything online session today and we’ll give you a plan.
This post is for informational purposes only and does not constitute legal advice.
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