Thinking about the arrangements relating to children following separation can often be a headache. You are in a heightened emotional state after separation and don’t know which way to turn. Whilst it is accepted that turning your attention to creating a routine is incredibly difficult, it is equally accepted that spending time and effort to try to plan and schedule time as soon as possible will stand you, and your children, in good stead. There might be a temptation to bury your head in the sand, but reaching out for help and guidance can be invaluable.
Initial questions you might want to think about, and discuss with a lawyer might include:
- Are you on your child’s birth certificate?
- Are you able to liaise with your separated partner/spouse or do you need assistance?
- Would you benefit from talking with an independent mediator to try to find a solution?
- Would a co-parenting app work for you?
What Legal Rights Do Fathers Have in the UK?
Parental Responsibility is defined in Section 3(1) of the Children Act 1989 as all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and their property.
It is important to understand that fathers don’t have Parental Responsibility as of right. Parental Responsibility can be acquired and consideration needs to be given as to:
- Whether the father is named on the child’s birth certificate;
- Has there been an agreement reached between the parents;
- Has a court order been made conferring Parental Responsibility;
- Is there a Child Arrangements (Lives With) Order which would confer Parental Responsibility on the person named.
Applications can be made to the family court to remedy the situation for unmarried fathers (married fathers automatically hold Parental Responsibility along with the birth mother).
Before applications to court can be made, alternative dispute resolution methods need to be considered. Mediation is a pre-requisite to a family court application and unless there are exemptions that render mediation unsuitable, the court expects alternative dispute resolution to be trialled, considering that court proceedings should always be the last resort. There can be situations, however, when the only way to remedy the situation would be a court application, and we can advise you if that is the case.
How Are Child Arrangements Decided After Separation?
Arrangements for children is a term which includes decisions about where and with whom a child will live and who they will spend time with. The court considers as paramount the child’s welfare when considering the best arrangements for them. It seeks to avoid delay which it considers prejudicial to a child’s welfare, and will only make an Order if doing so is considered better than making no Order at all. In other words, it recognises that often the best judges of the arrangements for their children are their own parents.
When agreement isn’t possible, the court will consider its overriding objective to deal with cases justly and with welfare at the heart of its decisions. It has regard to the welfare checklist within the Children Act 1989 which sets out a number of factors that the court should have regard to, including issues such as parenting capacity; the likely effect of a change in any circumstances for the child; and the child’s ascertainable wishes and feelings in light of their age and understanding. In the absence of agreement, the court will often look to CAFCASS, the Children and Family Court Advisory and Support Service, to help make recommendations.
Do Fathers Have Equal Rights to Custody and Contact?
The legal principle is Parental Responsibility and so this is effectively the yardstick by which parents can compare their legal rights and responsibilities towards their child. The court does not prioritise mothers over fathers, despite popular opinion, and it will always come down to the child’s welfare and what is considered in their best interests.
Parents often mistakenly refer to their “rights”. The court will be quick to make clear that the priority is the rights of the child to a relationship with each of their parents, which is presumed in statute providing such a relationship is safe.
That statutory presumption has been brought into question in cases where there are risks of harm and domestic abuse, but there is yet to be a change in the statute that may follow in coming years. The myth that the primary carer should be female is not accepted by the court but equally there is also no specific entitlement that either parent should have. Shared care is a popular arrangement that is becoming increasingly commonplace, recognising the shift in modern society, flexible working and reflecting the reality of the present day, however the arrangement that works best for your child should be bespoke and tailored to their needs. It can never be a one-size fits all.
What Happens if Parents Cannot Agree on Arrangements?
If agreement cannot be reached, it is always sensible to consider the value in alternative dispute resolution.
Mediation, as well as a precursor to court applications, can often be the perfect setting to discuss matters with a trained professional. A mediator will not advise either of you but will help steer an agreement and find a way forward without having to resort to court.
Ultimately the final sanction is a court application, but the court expects real effort to go into finding a solution before taking that step. Seeking advice early is a very positive first step – even if to correct misunderstandings, misapprehensions, or equipping you with the right tools and things to think about when things are often raw, emotional and daunting. We can help discuss through issues and try to find you a way forward.
How Can Fathers Strengthen Their Case for Time With Their Children?
It is really important to be proactive. It isn’t always necessary to apply to court or to instruct a lawyer to write to your ex-partner, but considering all of the options in a safe space can be invaluable.
Sometimes leaving things for a week, becomes two weeks, becomes a month. Time with your child may be lost or rebuilding a damaged relationship may take time. Setting negative precedents can also make it harder or make things take longer to progress. Time with children often gathers momentum as it builds and so planning a routine and building forward positively is almost always helpful.
Thinking from the other parent’s perspective about concerns or risk issues is also helpful – what do you think they might want to see to provide reassurances? Are there courses that you can complete? Can you consider a co-parenting app to try to communicate better for your child? Can you find solutions – the court is always impressed by parents who look to find ways forward for their child rather than look at problems and barriers. We can talk you through issues and try to help you navigate things when that may not look possible.
If this is something you require more information on, then please get in touch with our Family Law team.