There are few absolute rights in life, though the Americans have done their best by creating a Bill of all the ones they could think of. So it is difficult to understand why people think they have cast-iron rights when it comes to divorce and separation.
You will still hear a distraught parent talk about their right to see their son or daughter (I did this week and it got me thinking about this topic), but the apparent rights of the parents when dealing with children are not what the authorities are concerned about. Since the Children Act came into force more than 20 years ago, everything has been geared around the rights of the child – and that is exactly as it should be. It is just that “I have a right to see my child” remains a last ditch plea by a parent to remain in as close contact as possible with their offspring. I understand this, especially when dealing with another parent who is using the children as a weapon. But you can be at a disadvantage when dealing with Courts, some lawyers and welfare offficers unless you use the right Children Act language.
The basic premise is that children have the right to have a relationship with both of their parents. Still, it may be perceived that there is a bias towards the mother, usually because it is her they will be living with, and that fathers do not really have any rights. If a father has parental responsibility, he does have rights like, for example, access to school records and other information. However, it can though be difficult for courts to intervene in an effective way if the parent with whom the child is living is determined to resist there being any contact. Is there a better system? I am not sure there is a one-size-suits-all magic fix. The current one at least has the priority in the right place.
Other rights in divorce and separation are equally difficult to pin down. Grandparents don’t have any rights to see their grandchildren. An unmarried couple might not have any rights to, for instance, property and furnishings if they go their separate ways. There are no clear rights regarding a financial settlement either. There is no automatic rule of 50/50 as many think, though this would usually be a starting point.
So rights are few and far between, and I don’t see any way that this will change – or indeed should change. Perhaps instead we need to change the language we use rather than the rules.
Andrew Woolley
Family lawyer