The issue of a father’s rights to access his children regularly hits the headlines and we certainly hear some very unfortunate tales of fathers who are denied access to see their children when parents’ divorce or separate. Having recently represented two fathers denied contact with their children, and turned things around such that the children now live with them, these are my thoughts for any fathers in a similar position.
In order to try and help a father in his efforts to see his children it helps first to understand the legal position. As a father living in the UK you are entitled to a say in the care of your children. If this cannot be agreed with their mother, there are steps you can take to secure your rights to see your child.
Fathers and the law
A common question I get asked during the divorce process from worried dads is: what rights does a father have to see his child?
The law holds the view that parents have responsibilities towards their children and that it is the child that has a right to have an on-going, meaningful relationship with both of their parents. That relationship will be upheld by a court, as long as it is safe and appropriate for that to happen.
Both parents have responsibilities towards their children. Responsibilities to meet their child’s needs in every way: emotionally, physically, psychologically and financially. It is a joint responsibility of both parents to ensure that all of a child’s needs are met so that their child grows up being given the best opportunity in life to thrive and meet their potential.
Firstly, it’s important to understand the legal position of fathers.
The law defines parental responsibility 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”. It gives a parent responsibility for taking important decisions in the child’s life in relation to issues such as:
• which schools your child attends
• health and medical treatment
• religious upbringing
• holidays abroad and trips away with non- family members
• naming and changing a child’s name
It gives a parent responsibility in making day-to-day decisions, such as where the child can go, who with and what they might eat.
Parental responsibility – married fathers
All fathers, in England and Wales who are either married to their child’s mother or have their name on their child’s birth certificate automatically have parental responsibility. This legal term gives the father certain rights to make decisions about their child’s upbringing.
Parental responsibility – unmarried fathers
If you are not married to your child’s mother, or your name is not on the birth certificate you will not have parental responsibility automatically. You can apply to the Courts for parental responsibility or come to an agreement and enter into a parental responsibility agreement with the mother.
Before granting parental responsibility the court will consider what is in the best interests of the child. They will look at things like the level of commitment you have demonstrated as a father so far, the attachment you have with your child and your reasons for applying for an order.
A parental responsibility agreement would be appropriate for:
• an unmarried father whose name is not on the birth certificate,
• a father who marries and wants parental responsibility for a new partner’s child,
• a parent in a same sex relationship where the other parent already has a child, or gives birth during the relationship (assuming the couple are not civil partners at the time of the child’s birth).
A father’s rights to access
Many parents who separate agree between them with whom their children will live and when the children will see the other parent. Unfortunately, it is not always possible to agree, especially when emotions are running high in the breakdown of a relationship.
It is sometimes suggested that fathers do not really have any rights. There is a feeling that there’s not enough help for dads who are desperate to play a greater role in their children’s life but are being prevented from doing so.
Reaching an agreement as parents
A father has just as much right to have contact with and care for their children as the mother. When parents separate ideally parents reach an agreement on co-parenting together. If you would like to play a greater role in the care of your children and you cannot reach an agreement with your ex, there are steps you can take.
Sometimes a carefully worded letter from a family lawyer, setting out your proposals will help your ex see your point of view. If this doesn’t work mediation is an option. This is the process of sitting down with a neutral third party to discuss the situation and for each party to make their case in the hope that by talking openly about the situation you can reach a mutually agreeable solution.
Child Arrangements Orders
If negotiating in this way doesn’t work a father can make an application to the Courts for a child arrangements order. This will set out where the child will live and when they will spend time with the other parent.
It’s not a forgone conclusion that children live with their mothers and fathers are denied the ability to spend time with their children. There are regularly cases where arrangements are changed quite dramatically meaning that children spend more time with dad or even live most of the week with their father. Of course, this only happens if it’s in the best interest of the child and this has to be proven.
What rights does a father have to see his child?
The fundamental answer to the question is that the rights sit with the child, not with the parents. If you cannot reach an agreement and have to go to court to ask a Judge to decide, remember that the court’s will consider what is in your child’s best interests, not necessarily what either of you as parents want. More often than not, for a child to maintain a good, close and loving relationship with both of you is in his or her best interests and a court will make orders to ensure that happens.
So, the right of the father to see his children is actually his right to promote that his children should see him and for the child’s mother to promote that irrespective of her own feelings towards him. It is the child’s right to see their father and have an ongoing relationship with the parent that they don’t live with every day and to be encouraged by the parent they live with to see the other parent and enjoy time with them.
Coming to an agreement can sometimes be difficult and unfortunately some cases do go to court. If this is the case you will need sound legal advice to prepare and present your case.
Woolley & Co can advise and guide you through the processes involved. If you are concerned about your rights as a parent contact us for advice from one of our specialist family lawyers – call 0800 321 3832 or complete our online form to book a telephone appointment.