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Family Law Blog

Comment on divorce & family law 

It’s not all doom and gloom in children cases


There has been a plethora of sofa interviews and pieces in print about how frequently fathers are being denied access to their children following divorce or separation over the last week or so after the decision not to award any automatic rights to fathers following separation. Everyone seems to be jumping on the band wagon with a whole page given in this week’s Saturday Telegraph for example, to a piece by Louis de Bernieres bemoaning the sad fate of fathers only to reveal he has a shared care arrangement with his ex wife which was settled by agreement!

Don’t get me wrong – there are many problems with the way the courts deal with applications made by fathers but I did want to point out that by far the majority of couples resolve the arrangements for the children without going to court and by agreement. We have a “no order” principle in relation to children when couples get divorced and it is still a small percentage of divorcing couples who actively seek the intervention of the court when they cannot agree the arrangements for the children between themselves. There has also been a significant increase in shared care orders where residence is shared (not always exactly equally) between parents and this is something that was rare and only ordered in exceptional circumstances as recently as five or ten years ago.

When one of the parties does approach the court, I agree there is too much dithering and too much weight given to a mother’s negative comments about a father’s parenting skills or worse, accusations that he could be harming a child seemingly without any evidence. This can be compounded by the fact that the mother is often publicly funded and the father may well not be which makes it far easier for the mother to string things out.

The reality is that the only automatic right is the right of the child to have their best interests put at the centre of any decision. Another reality is that it is still much more common for the mother to be the primary carer of the child prior to separation and there is already a presumption in favour of contact in favour of the non resident parent (usually the father). Giving automatic rights to either parent could well only complicate matters as it still does not resolve how that would work in practical terms.

And just for the record, I secured a residence order for a father with a one year old quite recently, unusual I admit but clearly not impossible.

Kate Brooks
Family Solicitor Market Harborough

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