Fathers Rights

Fathers Parental Rights – What you need to know

Rather than identifying father’s parental rights (Father’s rights) as such, the law in the UK uses the term ‘Parental Responsibility’. In Scotland the term Parental Responsibility and Rights is used. What Parental Responsibility basically equates to, is the legal duty of care you have to protect and care for your child.

Introduction to Fathers’ Rights

In family law there are many areas where incorrect assumptions, misunderstandings or sometimes urban myths remain as commonly held beliefs. These can be surprisingly difficult to correct or distil, no matter what the legal profession does to try and counter them.

One urban myth that always comes to mind is the belief about “common law marriage”. This simply does not exist but a lot of people who live together think it does and that it affords them an element of protection, particularly if they have been living together for a long time. It really does not.

Likewise, when parents separate or divorce, there are a number of persistent misconceptions and myths about fathers’ rights.

Overall there tends to be a rule observed by the courts that post-divorce children should have access to both parents unless there is a clear reason why they shouldn’t. Father’s rights with relation to children can vary according to a number of factors which can include such things as whether they are married to the child’s mother, whether the father has parental responsibility and is named on the child’s birth certificate.

Fathers’ Rights in Relation to Access

The courts favour a stance that a child involved within a divorce case should have an ongoing relationship with both parents wherever possible. It is considered to be in the best interests of a child unless there is a strong and clear reason to indicate the contrary.

A father is equally entitled to spend time with a child post-divorce (or separation) as the mother is. Due to the practicalities of living arrangements, schooling and location, a child will often spend more time with one parent than another.

Under UK law, it is the father’s right to have reasonable access to their children, even if the children live with their mother. However, there is no definition as to what “reasonable access” is. The definition will vary according to individual circumstances and the age of the child involved.

Contact with a child in a shared agreement between a couple often manifests itself as a child spending agreed nights as well as some or all of the weekend or alternate weekends with one parent and the rest of the time with the other parent.

The Process Deciding Where Children Live

It tends to be more common for a child to live with their mother in post separation arrangements, but they can choose to have their main home with their father if all parties can agree that.

When a court is involved with deciding living arrangements, it will make a decision based on what it believes is in the child’s best interests moving forward. This decision will be based on looking at the level of care and accommodation each parent is capable of providing for the child.

It therefore follows that a father who wants to have their child (or obviously, children!) live with him as the main home, he will need to demonstrate that he is able to meet their needs and that living with him is a better option than living with their mother.

Sometimes living arrangements cannot be amicably agreed between the parties. There are cases where a mother might oppose the father’s wish to have the children live with him, or vice versa. In that situation the court will look at who is likely to be the better option as carer for the child.

It is worth noting that when a child reaches the age of sixteen, they can legally decide themselves which parent they will live with. The only situation where this is not acceptable is where there is a court order to the contrary.

This does not mean that younger children do not have a voice before they reach sixteen. From the age of twelve (or in some cases thirteen) children are allowed to express a preference for where they live. This can be taken into account by the court when making a decision. Even before a child reaches twelve or thirteen they can express a preference but the court will give less weight to these preferences due to the age of the child.

Child Arrangements Order

A child arrangements order is an order made by the court setting out who will have the responsibility for caring for a child, who the child will live with and how often they will have contact with their parents.

If you are in the situation where you are able to reach an amicable agreement with your child’s other parent it is useful, in terms of certainty, to have the details agreed by both parties put into an order and signed by the court so all parties know where they stand.

Where Mediation is an Option

Sadly, come couples are unable to reach an agreement or have passed the point where constructive communication is possible. If you are unable to amicably reach an agreement, then mediation usually follows as the next step.

Mediation is used when parents cannot agree between themselves on how to share responsibilities and contact scheduling with their child. The court will always insist on mediation (unless there is violence involved) before it will allow a hearing.

A mediator will not take a side and cannot impose a solution on the situation. They will work with you both to try and help you reach an agreement together. As well as being seen as a quicker and more cost-effective solution than a court hearing, mediation can help improve communication between the two parties involved, which can be beneficial for the child.

If mediation efforts also fail to achieve an agreement both sides can work with, then the court will decide what is in the best interests of the child and issue a child arrangement.

The court are bound to take into account the following issues:

  • The child’s wishes, depending upon their age and understanding.
  • The child’s physical, emotional and educational needs.
  • Any possible effect on the child of a change in circumstances.
  • Any other relevant information, such as the child’s age, sex or background.
  • Any risk of harm to the child.
  • How capable each parent is of meeting the child’s needs.
The Matter of Parental Responsibility

Parental responsibility is defined as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property’.

If you are deemed to have parental responsibility you can make decisions in respect of issues such as:

  • Where a child will go to school.
  • Healthcare and medical treatment.
  • Which religion a child will be brought up in.
  • Deciding what name a child will have.

A birth mother will always automatically have parental responsibility. The situation for a father is slightly different, but a father who is married to the child’s mother, who has their name on the birth certificate and where the child was born on or after 1 December 2003 will also automatically have parental responsibility.

Alternatively, a father who is not married to the birth mother and whose name is not on the child’s birth certificate will not automatically have parental responsibility. However, it is possible to apply to the court for parental responsibility to be granted, or simply reach an agreement with the child’s mother over the responsibilities that will be taken on.

In deciding whether to grant parental responsibility, the court will look at whether it is likely to be in the child’s best interests and what levels of involvement there are.

In extreme circumstances, for example to protect a child from serious emotional or physical harm and only where parental responsibility was acquired by an unmarried father, parental responsibility can be removed from the father.

What is a Prohibited Steps Order?

A prohibited steps order is made by the court to prevent a parent from taking certain actions in respect of their child where it is considered there is an attempt to restrict contact or parental responsibility. These include:

  • Relocating to a different area.
  • Taking the child to live abroad.
  • Changing a child’s school.
  • Changing a child’s surname.
  • Taking decisions over Medical matters.
  • Preventing a child having contact with a particular person.

A prohibited steps order is obviously restrictive and is not made lightly. There are many situations where there are good reasons for one parent to relocate or change their child’s school. The court will look at the reasons for the proposed change as well as the impact on the child before making a decision.

What is a Specific Issue Order?

If there is a specific issue between a couple, a specific issue order can be made by the court in respect of that dispute. This gives one parent the right to make decisions without the other parent’s permission or agreement but just with reference to the one issue.

Examples of subjects where specific issue orders could be made include:

  • Choice of school.
  • Medical treatment.
  • Where a child will live.
  • Which religion a child will be brought up in.
Can a Child Decide Not to See a Father at a Certain Age?

Children can decide not to see their father when they reach an age where they are regarded as an adult. Unless there is are specific issues that may involve abuse of some kind or another, children are usually encouraged to carry on seeing both parents.

Where there is a court order in place with relation to contact, it must be adhered to, unless another order is made allowing it to stop or change the contact requirements.

Absent Fathers and Parental Responsibility

If a parent is absent then they will still retain parental responsibility. Being absent does not affect the rights and responsibilities of parenthood.

Contact us

Need help with father’s rights? Call our friendly family law team on 01483 302000, email the team via family@rhw.co.uk or complete our contact form.

Meet the Family Law Team

Clare McNeill

Clare McNeill

Associate Solicitor
Michelle Davies

Michelle Davies

Legal Secretary
Richard Middlehurst

Richard Middlehurst

Associate Solicitor
Lauren Moir

Lauren Moir

Solicitor
Hannah Gibbons

Hannah Gibbons

Trainee Solicitor
Relevant News