Variation to Court-Ordered contact

[Unravelled]

Two years ago, DP went to family court because his exW was withholding contact to his two children (then aged 6 and 12).

The children and parents were spoken to by CAFCASS and the court ordered that both children reside with their mum. For DSS, Court Ordered contact was put in place, but for DSD, the court issued a "recital" that stated that her mum and dad had to allow her to visit her Dad at specified times "if she wanted to".
There have been a few hiccups along the way with DSS, but generally the court order has been followed by both parents. The situation with DSD was very difficult though; she went through a period of changing her mind as to whether she was going to visit or not right up to the point when DP would be on the doorstep to pick her up, and eventually, she decided to "miss" a number of visits, and said that she didn't want to come again. DP now has very little contact with DSD, despite trying to arrange to meet for meals out etc.

Last week, DSS told DP that he wanted to spend more time here on each visit; he has asked to add two extra nights to each visit. When the court order was originally issued, it was for far less contact that DP applied for, and the CAFCASS report said that they had recommended that schedule because it was what DSS had said he wanted at the time. When DSS said he wanted to spend more time here, DP talked it through at length, and DSS said that he wanted to talk to his mum about it, which he has done.

His mum has been in contact with DP and is proposing that if she agrees to a change to the Court Ordered contact, it is on the same terms as DSD has contact - in other words, she may agree to DSS spending longer here, but only if he has the option of "opting out" of the additional contact time, on a week by week basis.

This worries me because of what happened with DSD. I can imagine a situation where DP is dropping DSS off at school (exchanges are done through school) and he suddenly says "I want to go to mums after school". It also will give him the chance to avoid unpleasant consequences - if he has played up and DP implements a consequence/punishment, DSS can just decide he wants to go back to his mums rather than miss out on his computer time or games (he's a really good lad and it doesn't happen very often, but he's not perfect and sometimes DP does pull him up on things).

The other thing is that the children's mum works; when DSD was "choosing" whether or not to visit, she would sometimes say that she didn't want to be here, but her mum "made" her come because there was no-one else to look after her (DP's solicitor said that this was technically a breach of the court recital, but that it wasn't worth pursuing). If DSS decides that he wants to go back to his mum one day, but she is working and can't arrange alternative childcare, then DSS won't "get what he wants" (he'll have to stay here) but at other times he will be able to choose, which seems (to me) inconsistent and confusing for him.

Of course, it will also cause disruption to our own home life if we never know if DSS is going to be here for those extra days or not. When DSD was picking and choosing, it had a huge impact on my own DD; she was devastated when DSD chose to "opt out" at the last minute, she used to sob that it was "her" fault; that DSD didn't "like" her. I actually arranged for some counselling for her to help her deal with it.

Sorry this has got very long, but I would appreciate thoughts?

How old is dss now?

I am afraid there is very little the court can realistically do to ensure that contact happens for older children who are probably living in an environment which is actively or passively hostile to contact. The children almost inevitably follow the views ofntheir resident parent because what else can they realistically do?

Once a child is 12 or so their wishes and feelings are almost invariably determinative about contact, even if there is a strong suspicion that their wishes and feelings are very linked to resident parent, because you can't 'force' or encourage an older child in the way you could a little one. The classic phrase is that they will 'vote with their feet'.

The only options the court have are the nuclear ones - to change residence or imprison/ fine. For obvious reasons these are seen as remedies of last resort and only with clear evidence of blatant breaches of court orders by resident parent and evidence of harm to the children.

Sadly I never advise parents of children who are approaching teenage years to fight it out in court. You are unlikely to get anywhere. Is really sad but I think the only option for a dad in this position is to grit his teeth, keep trying, keep the door open. To allow this situation to arise is usually a very stupid move on the resident parent's part as I am sure a lot of children will twig what was happening in later life and be very bitter and angry.

MJ - DSS is eight years old now.

Spero - DP has accepted that there is nothing he can do about DSD , but would a court give DSS the same level of "choice" at his age that they gave his sister when she was 12?

Generally from 0-6 their wishes and feelings don't carry huge amount of weight. From 12 and over I would say their wishes and feelings are generally determinative.

Thus you have difficult period of between 7-11 where a lot depends on the maturity of the individual child and his particular circs. Thus if there is nothing obviously obstructive about the mother's behaviour I am afraid I can't see the court being able to achieve much.

Spero - is it possible to apply to the Court for a "variation" to the current order?

DP is not sure about "agreeing" with his exW to an arrangement which gives DSS the chance to "opt in and out" of some (or all) of the contact - it seems a big responsibility to give an eight year old

I think it would be wrong to have the same arrangement in place for your 8 year old dss as was put in place for your then 12 year old dsd. 8 is just too young for that kind of pressure - which is what it would be. It is effectively asking him to choose each time if he wants to be with his mum or his dad.

My dh and his ex have an informal agreement whereby they have the kids for half the time each. His ex rings everyday the kids are here and, while I understand that she wants to do this, it is very unsettling for them - especially the youngets who is 8.

We had a situation a couple of weeks ago when the youngest was talking to her mum on the phone and her mum was asking her if she is ok (she was fine before the phone call - her mum likes to feel the kids are missing her and repeatedly asks these kinds of questions.) dsd then became upset and her mum actually asked her if she wanted her to come and pick her up. We then had a hysterical 8 year old who was saying she couldn't decided and we didn't know what it was like.

I don't normally get involved but was so upset that I did, and I said to dsd that she is right - she can't decide and that's why mummy and daddy have an arrangement that means they don't have to - of course she may miss her mum or dad when she is with the other but that's ok - she will soon see them. She did stay at our house and was fine.

The point is that her mother was trying to make her choose and it was too much for her. I think what your DP's ex is suggesting would have the same problems for your dss and it's wrong.

Of course you can apply to the court for a variation of the order. You might well get it. But what you have to remember is that the court does not have magic powers - orders don't make unreasonable people act reasonably or give insight to those who lack it. Only therapy can do that and sadly the court has no power to order adults into therapy.

Also, a lot of parents use their children as pawns and most I suspect just don't understand the harm they do, they may even think they are doing the right thing! I agree that most 8 year olds couldn't cope with too much choice - it is only when they get older and friends etc start taking centre stage that it gets counterproductive to insist.

But it sounds like the problem is his mother and that is unlikely to change however many court orders you get. But I guess you don't have many options; you are truly between a rock and a hard place.

Is there any hope of mediation/counselling? Unless all the adults are genuinely behind contact arrangements, it is often very difficult to get them up and running and/or keep them going.