Can a parent be forced to see their child?

In the course of a Twitter conversation I was watching (but not participating in) the other day one of the tweeters made the point that the family courts can force a ‘custodial’ parent to make the child available for contact, but cannot force a non-custodial parent to have contact with the child. It is an old point, which I have seen raised a number of times over the years.

Usually the point is made as a question: can the courts force a parent to see their child? To which I have always answered “no”, never having come across a case in which an English or Welsh court has attempted in any way to force a parent to see their child.

However, that is not to say that I have never come across such a situation. Back in 2008 I was informed of a German case where the court ordered a father to see his son.

The facts of that case were as follows. The father was married and had two children with his wife. Several years previously he had an extramarital affair with a childhood girlfriend, and a child was conceived. It seems that he ended the affair (or at least it came to an end) and he managed to save his marriage, although any reminder of the relationship with his former girlfriend posed a threat to the stability of the marriage.

The mother of the extramarital child tried to force him to have contact with their son, but he refused, arguing that this would jeopardise his marriage. There were even suspicions that the former girlfriend wanted to use the case to revive the relationship. The matter went to court, and the proceedings continued for several years (the child was nine when I heard of the case).

At one point in the proceedings the Higher Regional Court in Brandenburg (which I understand is an appeal court) ordered the father to see his child every three months or pay a fine of 25,000 Euros. However, the father appealed to the Constitutional Court in Karlsruhe, claiming that the ruling would jeopardise his marriage and infringe on his personal rights.

The Constitutional Court ruled in the father’s favour, but not for the reasons he proposed. The argument of the court was based on the child’s welfare. Under German law, the child has a right to have contact with both parents, but the ruling stipulated that this normally stops short of the use of legal force, on the grounds that in many cases it would not be good for the child to have contact with an unwilling parent.

It’s an interesting attempt by a court to force contact, using the threat of a fine if the father did not comply with the court’s wishes. It’s also interesting as the father had a ‘genuine’ reason for not wanting to see the child, not simply that he couldn’t be bothered with him. However, the approach of the Constitutional Court must surely be right, and follows the approach that the courts would take in this country to any question concerning arrangements for a child: that the welfare of the child is paramount.

Ultimately, it must always be a welfare issue, and quite how the welfare of the child is going to be promoted by forcing a recalcitrant parent to see them is hard to imagine. Unless that parent has a last-minute change of heart it is obviously likely to be extremely traumatic for the child to see at first hand that one of its parents does not wish to see them, or possibly does not wish to even have anything to do with them. In the end, courts can force people to do things, but they can’t force people to want to do things.

The answer to the question, therefore, must still be: no, the courts cannot force a parent to see a child.

Image by pawpaw67 via Flickr under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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6 comments

JLB - March 23, 2017 at 3:21pm

Often ex husbands become ex dads. my ex simply stopped being a parent when we divorced and sees his children for a couple of hours a few times a year at most. The problem for me is that I have zero support in brining them up, no respite from being a single mother to 3 and little opportunity to have a life outside of being a mother. I can seek the support of my solicitor or the CMS if he doesn’t pay the child support but nothing can be done about his dereliction of duty and lack of a moral compass. It beggars belief that parents can just simply walk away from their moral responsibilities and nothing can be done.

Brian - April 2, 2017 at 10:56pm

Try being at the other end of the spectrum where you are being deliberately excluded from the upbringing of a child. As for respite from the demands of bringing up children, that is a convenient biproduct of the child spending time with the other parent – not a reason for it.

Erin - March 23, 2017 at 4:23pm

It is so sad that this question even needs to be asked (but I know that it does). Just because you are no longer married, does not mean that you are no longer a dad or mom.

Yvie - March 23, 2017 at 7:28pm

It is very sad when a parent no longer wishes to have contact with their child. I should imagine that the percentages are small when compared to the wider picture, when one parent deliberately seeks to alienate the children from the other parent.

Stitchedup - March 24, 2017 at 8:40am

Absolutely Yvie, that’s the elephant in the room that our feminist justice system and politicians choose to ignore. It’s difficult to imagine anything more abusive than brainwashing a child into believing their father doesn’t love them and is a danger to them. It’s also difficult to imagine anything more abusive to a parent than denying them contact with their children. But of course, our wonderful family and criminal justice system positively encourages estrangement of fathers and the demonisation of men/ fathers in general.

Andrew - March 24, 2017 at 12:09pm

JLB: Just what do you think could or should be done about fathers refusing to stay in contact with their children, when that is what happens?
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Some such men have to move because of their work. Would you want to stop them?
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And then there are those mothers who make contact difficult: last minute cancellations (“my Mum wants to come and see them, make it next weekend”) or getting them up late or wanting them back early or just making father feel unwelcome on the doorstep. Any of us who have done family work know all about that.

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