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.