THE Family Court has warned separated parents that they are required to hand over children for access visits, whether the children want to go or not.
While parents don’t have to “physically drag” the children to the other parent, they do have to “positively encourage” them to go, and punish those who refuse.
The vexed issue of how far a parent must go to ensure that children see the other parent came before the court in Akersley and Rialto (2009), a case in which a father implored the court to “do something” to ensure his children turned up for access visits.
He had been turning up at the children’s school this year, only to find they had either run away or gone home to their mother.
The mother told the court that she could not “physically force” the boys, aged 11 and 12, to see their father.
But judge Paul Cronin criticised her for not doing more to ensure they did want to see their father. He ordered the mother to deliver the children to their father if they turned up at her house when they were supposed to be with their father.
Separated parents have long been required by law to abide by Family Court orders, but men’s groups have complained that the orders are not enforceable, and the children do not show up for visits.
“We call it the closed-arm doctrine,” said Geoffrey Greene, of the Shared Parenting Council.
“The parent stands there with their arms crossed, saying, ‘Well, I can’t make the children go, if they don’t want to go’.”
Under changes to the Family Law Act introduced by the Howard government, the courts are trying to ensure that children have a relationship with both their parents.
“There are obligations on parents, regardless of the wishes of children,” Justice Cronin said.
He noted that parents “must not only ensure that the children are available, but must also positively encourage them to go”.
The mother had a responsibility to “discipline the children in the same way as any other parent would discipline a child by removing privileges if the child was defiant” and refused to go.
The father, 42, and the mother, 43, separated last December. The children live with their mother and see their father on alternate weekends, and Tuesday after school.
In July, the father went to the children’s school and waited in the normal spot but they were not there. Their mobile telephones were switched off. At 5.30pm, his former wife called to say the children were with her, and “did not wish to go with him”.
The husband’s solution was “that she should tell the children forcibly, verbally and assertively that it was her expectation clearly for them to go.
“I do not advocate that the wife should have physically dragged either or both the children outside of the house and locked them on the porch with their father,” Justice Cronin said.
“There is a step well before that, in which the children should have been told they were going with their father, rather than it was simply expected of them.”
He said the former wife had a responsibility to ensure the children carried out the orders of the court.
“The wife must adopt a disciplinary approach by making clear that privileges in her household will be denied until the children comply with the orders of the court,” he said.
But Charles Pragnell of the National Council for Children Post-Separation disagreed. “We come at this from the children’s point of view,” he said. “How can it be in their best interests to force them into a relationship? At 10 or 11, a child can decide for themselves, but it’s one of the idiosyncrasies of the Family Court at the moment, that it takes a firm line on this.”