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Fathers’ legal rights following separation

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What rights do fathers have when they separate from their child’s mother and what can they do if they are unhappy with the arrangements for their child?

When parents separate there are usually lots of issues to consider including money and property but often the most important is the arrangements for a child of the family. The usual, albeit stereotypical scenario, is that the child will remain living with mother and the child will spend time with the father.

Separated parents can be civil or even friendly when making arrangements for their child but unfortunately this isn’t always the case; sometimes fathers are left in a difficult position and feel beholden to the mother. If the mother is hurt about the relationship breakdown, making any kind of arrangements at all can be almost impossible. In this situation, it is imperative that fathers are aware of the legal rights they have and the options available to them to try to change the arrangements for their child.

What are fathers' legal rights in this situation?

The legal rights a father has depend on whether he has Parental Responsibility (‘PR’) for his child. Importantly fathers do not always automatically acquire PR like birth mothers do, this is a privilege afforded to just those fathers who are married to the mother of their child. Their unmarried counterparts, if they want to have PR, he will have to try to acquire it using one of the routes set out in section 4 of the Children Act 1989, these are:

  1. being named as the child’s father on the birth certificate;
  2. entering into a PR  agreement with mother which says that he will have PR for the child; or
  3. obtaining a court order giving him PR.

The importance of PR is that it gives a person rights and responsibilities in relation to the child concerned. So a person with PR can decide where a child goes to school, what medical treatment they can have, and which religion they shall enjoy, for example. If more than one person has PR, they should exercise it together, that is make joint decisions about matters concerning the child. Also, if any person with PR but without a residence order in their favour wishes to take a child abroad, they need the consent of the other PR holder to prevent the criminal offence of child abduction being committed.

Finally, for a separated father, having PR gives him the opportunity to make a court application for what is now known as a Child Arrangements Order (this term has replaced Contact and Residence Orders) if he cannot agree on the arrangements for his child with mother. Not having PR isn’t the end of the road for a separated father though: in this case the road is just a little longer as leave of the court would be required in order to make an application and as part of the Child Arrangements Order made, the court may grant PR to the father.

When should a father consider making court application for a Child Arrangements Order?

If it is clear that a reasonable level of contact/satisfactory living arrangements for the child cannot be arranged by way of agreement, it may be that the court’s assistance is required. A court order is the only legal way a mother can effectively be forced to make the child available for contact with their father.

Prior to an application being made, a father would have to explore the possibility of mediation. He would need to attend an initial meeting with the mediator who would then contact the mother to see if she is willing to attend also. If she is, and the mediator determines that the case is suitable for mediation, a joint mediation session should go ahead. If the mother is unwilling or the mediator considers that the case is unsuitable, the mediator is able to complete the relevant section of the court application form and provide this to the father. He can then complete the remainder and lodge his application at the court, perhaps with an accompanying document. Any solicitor instructed should ensure that the necessary documentation is completed on the father’s behalf and approved by him before being lodged at the court. There are likely to be 3 court hearings before a final order is made. Although fathers may not wish to resort to court proceedings, in some cases this is the only way to achieve a level of contact/living arrangements for their child which they believe are reasonable.

A father should be aware that when before the court, fathers’ rights are not the determining factor the court is obliged to take into account when deciding what the terms of the Child Arrangements Order should be, the welfare of the child is the paramount consideration. However, it may be reassuring for separated fathers to know that provided it is in the child’s best interests to have a relationship with their father which involves direct contact, the court will be likely to order this.

Fathers may also be pleased to know that senior judges have made various comments in recent years indicating that it is ‘almost always in the interests of the child’ to have contact with their parent (Re C (Direct Contact: Suspension) [2011]). As an example, when one of my former clients separated from his partner, she would not let him have direct contact with his child, she insisted on supervising. It was clear that she was not going to change her mind on this so he made an application to the court. At the end of court proceedings, the outcome was alternate weekend and midweek contact with additional contact in the school holidays.  

There are some cases where a separated father isn’t happy with contact with his child and wishes to either have ‘joint custody’ (which we now call shared residence) or sole residence. Although neither of these arrangements is the norm, both are possible. In my experience, fathers who have achieved shared residence have done so by agreement with mother rather than by court order but there have been cases where the courts have ordered this. As for sole residence, I have acted in cases where the parents have agreed their child will live with father but this has been rare; usually the child has remained with mother who effectively has residence. However, even if this is the case, if a father feels that his child living with mother is not the right outcome for his child, he can seek to change this and ask the court to transfer the residence of the child. Such orders are rare but they are possible and indeed one of my former clients was granted one just a few months ago which shows that in the right circumstances the courts are willing to take this step.

My examples above of cases I have been involved with hopefully shows that it isn’t all doom and gloom for separated fathers. In my experience, fathers who are committed to their children and are child-focussed can achieve great results in court should court assistance be needed. Fathers who appear aggressive, irrational, or difficult will not help themselves as the case of Re T (A Child) (Suspension of contact)(Section 91(14) CA 1989) [2015] clearly shows. Fathers need to ensure they ‘keep their powder dry’ and come to court with clean hands. To help with this, I often advise my clients to imagine that the judge can hear and see all of their contact with mother as a way of encouraging positive communications and behaviour. I appreciate this may be extremely difficult but it is important to bear the end goal in mind at all times.

What should separated fathers bear in mind?

The message I want to get across to separated fathers is that there are ways you can spend a decent amount of time with your child provided it is in your child’s best interests. You don’t have to go along with the arrangements mother is offering if these are unreasonable – help is available. But if you think you may need help to secure arrangements for your child which you are happy with, my advice is to take legal advice at the earliest opportunity – delay in taking action will not help, particularly if you are not having contact with your child.

If you are having difficulties with making arrangements for contact with your child (whether you are mother or father), please do not hesitate to contact me to discuss your options further. You can reach me at justine.osmotherley@clarionsolicitors.com or 0113 336 3323.

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