When going through a separation which involves children, fathers are often unsure of their rights in terms of contact and access to their children. Under UK law, a parent’s rights regarding their children are determined largely by whether or not they have parental responsibility.
Although parental responsibility alone does not guarantee a fathers’ right to contact or access their children, should the father face opposition from the mother or other carers of the child, they will not be able to apply for a court order to gain access or make changes to the child’s life unless they have parental responsibility.
Seeking legal advice as early as possible can help ensure you exercise fathers rights, while ensuring the best interests of your children.
Fathers rights: What is parental responsibility?
In the UK, mothers automatically have parental responsibility for their children. For fathers, parental responsibility depends on whether they are married to the mother, named on the child’s birth certificate, or has successfully applied for parental responsibility.
If you are not and were not married to the mother of the children and are not listed on the child’s birth certificate, you do not have parental responsibility and so have reduced rights regarding your children. In these cases, you must rely on the decisions of the mother regarding your access or take steps to undertake parental responsibility.
Fathers rights: Rights under Parental responsibility:
Having parental responsibility over your child means that you have a duty to meet that child’s physical, emotional, psychological and financial needs.
Financial responsibilities are usually handled through a child support or child maintenance agreement. Parents can create their own parental-agreement, which is not legally binding, or utilise mediators and organisations such as Child Support services or the courts to establish a legally binding agreement. This aspect of parental rights is normally a connected but separate element of fathers’ rights.
The other parental responsibilities, meeting a child’s physical, emotionally and psychological needs, can arguably only be met through regular, positive, meaningful contact with the child. When a both the mother and father have parental responsibility, they will have a joint responsibility to ensure the child has these needs met by both parents. This generally means spending quality time with both parents and therefore forms the basis of a father’s rights to have access and contact with their child.
Fathers rights: Parents without parental responsibility:
Fathers who were not married to the mother of the child at the time of birth or do not otherwise automatically have parental responsibility can apply for it. Step-fathers and fathers of adopted children who are separating from their partner can also apply for parental responsibility as it is legally possible for a child to have more than two people with parental responsibility for them.
If the mother supports the father in their seeking of parental responsibility, the father can apply through a parental responsibility agreement. This will require the filling out of the agreement application and taking it, along with the child’s birth certificate and proof or the parents identity (e.g. passport), to a local or family proceedings court. There the agreement must be signed by both parents under witness. Once this process is complete, two copies of the agreement must be sent to:
Principal Registry of the Family Division
First Avenue House
42-49 High Holborn
London WC1V 6NP
Fathers seeking parental responsibility of their child with objection from the mother will need to apply for a court order. The application process involves filling out an application for order C1 form, sending it to the local family proceedings or county court, and paying a court order fee of £215. Fathers who are on low income or benefits but are seeking a court order for parental responsibility can sometimes get financial help for court fees.
Once parental responsibility over the child has been confirmed, fathers can follow the approach of fathers who automatically has parental responsibility in certifying their rights to contact, access, and decision making in their child’s care.
Fathers rights: Fathers with parental responsibility:
If you are the father who was married to the mother of your child at the time of their birth you automatically have parental responsibility for the children. If you were not married but are listed on the child’s birth certificate within certain date parameters you also automatically have parental responsibility.
Parental responsibility does not automatically grant you access and contact to your child or mean you can make important decisions regarding your child’s future.
However parental responsibility is a core part of your case when negotiating how your child’s care should be organised and gives you the power to apply for court orders should there be unresolvable issues in how your child is cared for.
Fathers with parental responsibility should seek to discuss arrangements for the child and reaching an agreement for parental care of the child with the mother as soon as possible.
Fathers rights: When both parents agree:
If both parents agree over the details of how a child will be cared for, including how custody will be split, how contact between both parents and the child will be managed, where the child will live and be educated etc, it is advisable to have a written agreement or parenting plan. While not legally binding, the existence of these documents can provide ongoing clarity and proof of original agreements should the circumstances change.
Should parents want to make there parenting plan or agreement legally binding they will need to ask a solicitor to draft a consent order.
Consent orders are the official documents which make parental agreements legally binding. Both parents should be involved in drafting the consent order which should include decisions on important aspects of the child’s care such as:
- where the child will live
- How time will be divided between the parents
- What, how and when other forms of contact, such as phone calls, will occur
Both parents will need to sign the draft consent order along with a C100 court form. A legal adviser or solicitor can assist in filling out of the form. The draft agreement and C100 form and 3 copies of the form then need to be sent to the closest court which can deal with cases involving children to be approved. Copies of the form and draft consent order should be kept for reference. The process costs £215 in court fees plus any costs incurred from using a solicitor or legal advisor. Financial help for legal costs may be available for partners on low income or benefits.
Once the court has received and processed the paperwork, as long as the judge believes the decisions are in the best interest of the child they will approve consent order and make the agreement legally binding.
Court hearings are unusual but can occur in instances where the judge feels the consent order does no protect the best interests of the child. In these instances, the judge has the power to alter the submitted consent order or create a different court order to determine what is best for the child or children.
Fathers rights: When fathers face opposition:
If agreement between the parties cannot be reached about how to care for the child, the first step is to seek help in trying to reach an agreement. For the case to progress there must be evidence that there were attempts to resolve disputes and come to an agreement through mediation or other forms of negotiation. Only if it is impossible for both parents to come to an agreement should either parent seek a court order.
Should it be impossible for the father to get the access, contact, and involvement in his child’s life that he seeks, it is possible to seek a court order.
Before a father can take his case to court he must apply for a court order, demonstrating that he has attempted to resolve the case with the mother first through at least attending a meeting about mediation (except is in cases where there has been domestic abuse).
The court order process can be long and complex, so not only should it be a last resort but it is strongly advised you take legal counsel throughout the process.
Depending on what issues the father is concerned with there are two types of court order which they may apply for. It may be that there are multiple issues and it is possible to apply for multiple court orders at once.
A ‘child arrangements order’ is concerned with core arrangements for your child such as:
- Where the child will live
- How the parents split care and time with the child
- How and when other forms of contact, such as phone calls, with each parent will occur
‘Child arrangements orders’ replace ‘residence orders’ and ‘contact orders’. Parents with these orders don’t need to re-apply.
A ‘specific issue order’ is concerned with specific elements of the child’s upbringing. Examples of disputes which would be resolved through a specific issue order include:
- Which school or educational facility the child attends
- If and how the child should have a religious education
- If and how a child should receive specific medical treatment
It is also possible to apply for a “prohibited steps order”, removing the other parents right to make a specific decision regarding how the child is brought up.
Attaining a court order can involve attending court appointments as well as numerous court hearings. The court may also require parents to undertake a course with the mother or re-attempt mediation to try and resolve issues.
The court will rule in favour of whatever is considered in the best interest of the child. As long as both relationships are safe and appropriate, the courts will usually rule in favour of both parents having contact with the child and an equal say in how the child is raised.
Applying for a court order is only possible if the father has parental responsibility for the child. If the father does not than he will first need to acquire parental responsibility and then start the process of reaching a parental agreement or court order.
Why seek legal advice:
Fathers rights can be easily misunderstood and vary from case to case. Having access, contact, and an influence in how your child is brought up is of utmost important to most fathers and can be an ordeal fraught with emotion and distress. The legal process is complex and court cases are draining and distressing for everyone involved, including the child, making them a last resort. To avoid ending up in a court case it is best to seek legal advice early on in a separation involving children. Should a dispute be impossible to resolve outside of the courts, legal support is critical in ensuring your rights as a father are protected.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
