Family Solicitors

By Susan Forgie

Recently the family department at Duncan Lewis has had an influx of letters from clients in prison, requesting legal advice as a result of advertising in magazines published for prisoners. The majority of requests are from serving prisoners seeking advice and assistance regarding contact with their children.

Obviously there are many difficulties regarding contact while clients are in prison. The area is somewhat taboo, as it is often argued by the parent with care that contact is not in the best interests of the child. There are also practical difficulties with visiting prisoners, as all visits need to be pre-arranged and children need to be accompanied.

This has not stopped the solicitors of the family department at Duncan Lewis from securing public funding in order to represent clients in prison and apply for contact and parental responsibility for their children.

The question is sometimes raised as to how it is fair on the resident parent to be compelled to obey an order for contact, whilst one parent has committed a crime. Should that person even be allowed to use public funds to make their application? Our position is yes they should. The fact that someone is in prison should not be used as an inhibiting factor to contact and there is recent case law to back this.

Where there are dangers to the child, for example if a father is in prison for a sexual offence, this may have a prejudicial effect on the case for contact. For one of our clients, public funding was refused where a father wanted contact with his children, and he was currently serving a prison sentence for rape of the mother. The rape in this case was quite graphic and the Legal Services Commission took the view that contact would not be in the best interests of the children as they were quite young.

On the other hand recent cases within the Duncan Lewis’ Family Department in Hackney have proved that contact can take place where the father is in prison for another offence, such as burglary. One example of this situation is where telephone contact was ordered to take place on a weekly basis and also visiting contact every six months, with letters in between. This outcome was also assisted by a favourable report from the CAFCASS Officer, who after much persuasion attended prison to take instructions from the client. This case is a prime example of how those in prison can have successful and meaningful contact with their children.

There are those who take the view that it is unfair that a mother is now compelled to take her child to prison to visit their father; the approach for a family lawyer is that we should not judge but instead assist the client to put his case appropriately before a judge and allow the court to make the decision. Predominantly our instructions tend to come from fathers in prison; however, we are able to assist in circumstances where it is the mother in custody who is requesting contact.

Where a contact order is made in favour of a father in prison and this order is breached enforcement action can then be taken by the father to enforce the contact order. As a result the mother could be fined or ordered to undertake community service.

The issue of unmarried parents and parental responsibility has caused much controversy in the Courts as they deliberate as to whether or not parental responsibility should be granted where the father is in prison. The main reason for opposing such an application is the fact that when a person is in prison they are unable to exercise their parental responsibility rights. It is argued that parental responsibility is important for a parent in prison to acquire, so that the resident parent cannot remove the child from the jurisdiction or change their surname without the father’s consent; clearly in circumstances where a client in prison has little contact with the outside world, it is not possible to contest such matters as easily as if they were at liberty.

Contact whilst a parent is in prison is a sensitive area and consideration has to be given to whether or not it is in the best interests of the child to visit a father whilst they are in prison. Provisions are made at prison for the resident parent to have their travel costs reimbursed and although it is not the most natural environment to have contact, there are centres available and support for contact to take place.

Where the courts refuse to grant contact whilst a parent is in prison, could it be argued that it is a breach of the prisoners Human Rights? Can the courts infringe upon someone’s right to Private and Family life if they are imprisoned by the state? In reality each case needs to be decided on its own merits as in some circumstances, contact is not practical or in the best interests of the child. However where contact can be facilitated then provisions need to be in place to ensure that it takes place.