What do you do if after a divorce you, as a child, want to remain in contact with one of your parents, but your parent does not want to stay in contact with you?
Let us look at the details of a case in order to illustrate the above mentioned issue:
After the relationship breakdown between father and mother, the court determines a contact arrangement for father and son. However, the father does not stick to this contact arrangement. Then, in proceedings, the son requests specific performance and an order complying the father to adhere to the contact arrangement. If he does not comply, he is subjected to a penalty of €500 per day for each day he fails to have contact.
The court determines that the father is to have contact with his son one weekend every 14 days, from Saturday morning to Sunday afternoon. In interlocutory proceedings, the court issues the order subject to a penalty. The father must therefore comply with the contact arrangement, as the court judges the contact to be in the interest of the son.
The father appeals – he states he is not willing to comply with the contact arrangement despite the imposed penalties. The Court of Appeal rules that the grounds put forward by the father are not sufficient. The most important ground put forward by the father is that the mother refuses to communicate with him. Any contact with her, according to the father, results in residual feelings for him and he does not enjoy the contact with his son. The mother also does not want to modify the imposed times although this leads to difficulties for the father in connection with his work. However, the Court of Appeal rules that the interest of the son must be paramount.
There may however be substantial interests of the father which could have a detrimental effect on the son. But in the opinion of the Court of Appeal, this is not the case here. The poor communication between the parents would not have any relevant effect on the son – at any rate the father has not made this plausible. The father also does not put forward circumstances which are of such a nature that he cannot have contact with his son. Conclusion: the father must have contact with his son despite all objections and the imposed penalties.
It is questionable, whether contact, however much in the interest of the child, should be enforced…
If you have any questions regarding children and divorce, please do not hesitate to contact us.
Update article: December 2017.
Susan studied Law at the Erasmus University Rotterdam. She has worked as a lawyer since 1986 and gained an immense amount of experience in dealing with the full range of matrimonial and separation issues in international divorces. Susan joined GMW lawyers in 2011 and is a member of the Family Mediators Association.
Susan is an expert in contested financial disputes both in and outside court. One of her key strengths is the ability to empower her clients so they can understand and take control of the process, and forward constructively, especially for the children’s sake. She further specialises in strongly contested residence, contact disputes and is experienced in dealing with the legal aspects of child abduction.
Susan frequently acts for parents whose children have been taken abroad illegally and assists in obtaining their return.