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Criminal Record – Child Contact

Can a father who has a criminal record for drug related offences still have contact with his child and is there any guidance on what will be considered by the court where there is a criminal record?

28/07/2017

Produced by Lexis PSL in partnership with Chris Bryden of 4 King’s Bench Walk

Section 1 of the Children Act 1989 provides that the paramount consideration for the court is the welfare of the child. Where a court is determining any question with respect to the upbringing of a child, it will have at the core of any decision what is in the child’s best interests.

When considering making orders regulating with whom a child lives or spends time with, the court will therefore consider what is best for the child having regard to the welfare checklist set out in Children Act 1989, and not what is best for the parent.

However, in 2014 following the Children and Families Act 2014, a number of new subsections were inserted into Children Act 1989.

This also provides that the court is to presume, unless the contrary is shown, that involvement in the life of the child by a parent will further the child’s welfare.

Involvement

‘Involvement’ is defined by Children Act 1989 as being involvement of some kind, either direct or indirect, but not any particular division of time. The purpose of this presumption was to direct courts that some form of involvement should be directed unless there was reason not to do so.

The Children Act, provides that ‘parent’ for the purposes of the presumption includes any parent that can be involved in the child’s life in a way that does not put the child at risk of suffering harm.

Court Discretion

There is a wide discretion for the court to consider what orders to make, having regard to the welfare checklist, and with the welfare of the child being paramount.

This basically means that the court will approach each case individually and consider whether any order that it is asked to make meets those statutory criteria.

Given the scope of this discretion, neither statute nor case law tends towards prescriptive rules relating to categories of cases where contact will or will not be ordered. Each case will turn on its own facts, as has been repeatedly emphasised by the higher courts.

Drug Related Offences

As a result, a conviction for drug-related offences is not of itself a bar to contact. However, depending on the nature of the conviction, this will be one of the factors that the court and Cafcass (The Children and Family Court Advisory and Support Service) will take into consideration in respect of safeguarding and welfare.

  • This may mean that, due to the nature of the offence, ultimately a court will decide that the presumption of involvement is rebutted, or that any contact should be limited to indirect contact—gifts or cards for example.
  • However, it may also mean that there is no bar to contact whatsoever, if the conviction is historical and/or the nature of the offence was minor.
  • The case could also fall between those two extremes, with the court requiring contact to be supervised and for there to be regular hair strand drug tests, combined with undertakings not to use or be under the influence of drugs when with the children.

As each case will turn on its own facts, there is limited guidance to be drawn from reported case law relating to criminality; however, the existence of a criminal record will be highlighted in the initial safeguarding checks contained within the Cafcass (The Children and Family Court Advisory and Support Service) safeguarding letter, and depending on the nature of that record may then be relevant to the recommendations made to the court and the orders consequentially made.

If you further guidance on the issues raised in this article then please contact Mark Hagyard on 01535 687070.

 

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