The effect of lawful detention of a parent upon access to their children
You may find yourself in a position where the absent parent of your child is imprisoned but still wants to see their child. This may cause you concern regarding overall family welfare. It is important that you know of the rights such parents have so that you can take steps to make sure that suitable safeguarding for you and your children remains in place or is added.
A parent detained.
A non-resident parent may be physically unable to have contact with their child due to hospitalisation through illness, detention under the Mental Health Act and court-imposed imprisonment. The starting point in all such scenarios remains that a child is best served by having meaningful contact with both parents.
Imprisonment.
It is estimated by the Ministry of Justice that there were 192,912 children in England and Wales with a parent in prison between October 2021 and October 2022. As many as 7% of all children experience the imprisonment of a parent, predominantly their fathers, during their time at primary school.
Government research about this shows that children usually want to maintain links with their imprisoned parents, although help, especially when visiting prisons, may be difficult to obtain.
The law.
Where the prisoner parent is unable to make an agreement with the resident parent that they can/will assist contact to take place, it is open to them to make an application to the family court. Imprisonment should not act as any bar to seeking help from the court in such circumstances.
Despite this, many prisoners lose contact with their families during their time in prison. Reasons for this will almost certainly include social exclusion and restricted accessibility of advice.
Contact between prisoners and their children can have strong rehabilitative effects, so when making any decision regarding a child’s upbringing the court’s paramount consideration is the child’s welfare.
Children have a fundamental right to contact the non-resident parent, so where the court makes a contact order against the wishes of a resident parent, it is because it is made for the benefit of the child and not necessarily the non-resident parent.
Court applications.
When considering an application under the Children Act, the court must have particular regard for the factors on the welfare checklist. These are:
- the ascertainable wishes and feelings of the child concerned—considered in the light of his/her age and understanding;
- his/her physical, emotional and educational needs;
- the likely effect on him/her of any change in his circumstances;
- his/her age, sex, background and any characteristics of his, which the court considers relevant;
- any harm which he/she has suffered or is at risk of suffering;
- how capable each of his/her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs; and
- the range of powers available to the court.
The court will want to make sure that the parent applying for contact has a genuine motive and will ask why it is being made.
The court also must be convinced that making an order will be better for the child than making no order at all—the “no order” principle.
None of the factors leads to an automatic assumption that contact taking place in prison is undesirable.
Indirect contact.
In some cases, direct contact in prison may be unsuitable, and an order for indirect contact may be sought and granted.
There will be a range of options available to the court where it does not order direct contact, e.g. adjourning an application generally to the date the parent is released from prison and giving permission for the imprisoned parent to continue it upon release.
The court will also be aided by the Children and Family Court Advisory and Support Service’s involvement to provide an independent view. The mental and physical health of the child’s primary carer is a factor and will need to be balanced against the child’s need for direct contact.
Assisted visits scheme.
Where direct contact has either been agreed or ordered, the residential parent/carer may be unable or unwilling to fund or facilitate this contact.
Convicted prisoners are often likely to be held at prisons some distance from the child’s home.
Travel time and costs may be out of reach, as well as the resident parent’s reluctance to accompany the child.
In cases where there is a family member or friend able and willing to enable contact with a parent in prison, there are assisted visit schemes available to those on low incomes.
Local authority obligations.
The law requires a local authority to safeguard and promote the welfare of children “in need” in its area. A child is in need if his health or development, including emotional and social development, is threatened.
Where it is agreed that contact is in a child’s best interests, any circumstances where there are practical and physical impediments to a child’s enjoyment of that contact means there must be a presumption, at least, that this is sufficient to render them a child in need, so it is likely that they will be involved in the process. If any of this resonates with you and you need our advice relating to your own specific circumstances, do contact us for a free half-hour initial consultation.