Continuing with our series of articles on common myths in family law, this article aims to remedy some of the mistruths our clients are being told:

  • Myth – Mothers always have the children placed with them.

Reality – Each case is different.  The court when determining where a child shall live look at what is deemed to be in the child’s best interest.  There are a number of different factors the court must consider when doing this including, the child’s age, sex and background, the impact of any change and the ability of each parent to meet that child’s needs. Another consideration where the child is of a suitable age is what their own wishes and feelings are. This can mean the child is placed with either parent 

  • Myth – It is my right to have contact with my child.

Reality – Parents do not have rights to contact.  The right in fact belongs to the child.  The law says that there is a presumption that a child should have the right to a meaningful relationship with both parents. The courts will often have to intervene where no agreement can be reached and often the court will look to this presumption first. However, certain risk factors such as any drugs, alcohol, untreated mental health issues or problems with the police or social services can lead to further difficulties with establishing a pattern of contact between the child and the parent as all contact must be safe.

  • Myth – If I go to court, we will get an order?

Reality – This is not always the case.  When deciding what to do, the court must consider all options. One option is that there should not be an order at all. This is known as the “No Order Principle” and should be considered when applying to the Court, as ultimately if the Court feels that an order is not needed, they will not make one.

  • Myth – I pay maintenance; I therefore should get contact.

Reality – They are 2 different things.  Paying maintenance does not mean that person should get contact. Similarly, not paying maintenance does not mean that contact can be stopped.  The duty to maintain a child is largely dealt with by the Child Maintenance Service. The family courts only intervene in finances in children matters in very limited circumstances.  When looking at contact they will be firmly focussed on whether the same is in the child’s best interests.

  • Myth – I do not need the other parent’s permission to take my child on holiday.

Reality – Without an order, not only do you need everyone’s permission to take a child out of the country who has parental responsibility, if you fail to get this, you can be guilty of child abduction.  Further, if you are going out of the jurisdiction (England or Wales) you still require permission.  Parents are advised to get permission in writing well in advance of travelling or they will need permission from the Court to travel.  In cases where a Live with Order is made in favour of one parent, that parent can go out of the jurisdiction without needing permission from the other for up to 28 days. The parent could however be in breach of an order if they do not follow the order in terms of any contact that has been arranged, but is a far less serious than being guilty of child abduction.

This is only a small selection of the myths that we are presented with as practitioners.  Because of this, it is important to get advice at an early stage when considering resolving a Children dispute.