The issue of a father’s rights to spend time with 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.
To 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.
Father’s rights in the UK 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 to meet the 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.
Parental responsibility in the UK
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 making 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 also 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 rights and responsibility for 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.
Parental rights and responsibility for 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 father’s rights to access
A father has just as much right to have contact with and care for their children as the mother. When separated, parents will ideally 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.
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. In this instance it’s important to understand the legal rights for fathers in the UK.
Child Arrangements Orders
If an agreement cannot be reached through negotiation, 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 access to their child. 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 are a father’s rights 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 go to court to ask a Judge to decide, remember that the courts will consider what is in your child’s best interests, not necessarily what either of you as parents want. Often, 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 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.
Father’s rights in the UK FAQs
How much access is a father entitled to in the UK?
Within the UK, the amount of time a father should spend with his children will depend on practicalities but ultimately is based on the best interests of the child involved. This and various other factors are taken into consideration by the court and in most cases, what is in the best interests of the child will range from set arrangements for some week and/or weekend days or a more general sharing of care.
Either way, having contact with their father is the legal right of a child, with it being understood that ideally the child should be in contact with both parents. Due to the unique situations of each family unit however, there are no hard and fast rules on the contact a father is entitled to, indeed, strictly speaking, there is no entitlement.
It’s important to understand that if the father has parental responsibility for a child, he can be required to provide maintenance payments but is not automatically given rights to spend time with the child.
What rights does a father have?
In the UK, the law focuses on the rights of the child to have a relationship with both parents.
A mother will have rights and parental responsibility for their child from the moment they are born. However, a father’s paternal rights and responsibilities are reliant on whether:
- They are married to the mother of the child OR
- They are named on the birth certificate OR
- There is a parental responsibility agreement in place (either a voluntary one agreed with the mother, or one obtained in court)
If a father has parental responsibility, this will ensure he is involved in decisions regarding the child such as:
- Where they will get an education
- Medical treatment
- What religion they will follow as a child
- Legal decisions
- Whether they can be taken out of the country
- Change of name
Furthermore, if a father has parental responsibility, the law will hold that they have the same rights to make decisions about their child as the mother. A father’s rights are just as important as a mothers in the eyes of the law, meaning both parents will have the right to spend time and have a relationship with their child.
Where a father does not have parental responsibility, their rights may be somewhat limited. However, there are ways of obtaining parental rights if it has not been automatically granted, which is something our team will be able to advise you on.
What is reasonable access for fathers?
As every family and situation is completely unique, there isn’t strict legal guidance on what is reasonable access for fathers. The courts want parents to focus on shared parenting, which doesn’t necessarily mean equal amounts of time with each parent. The courts will always focus on what is in the best interests of the child, and of course that should be the focus of both parents too. Whereas in some cases it may be appropriate to split childcare by alternating weeks, weekends, holidays, school club trips, etc. in other situations a parent might only see their child for short visits, less frequently or on an ad hoc basis.
No matter the situation, the decision regarding how much time a father has with their child should be dependent on the child’s needs. With older children, their own wishes and feelings will also be more important.
Does a father have the right to know where his child lives in the UK?
If a father has parental responsibility (explained above) he has the same rights to that of the mother, and has the right to know where their child is living. This, however, may change if it conflicts with the child’s best interests. For instance, an abusive father may lose their right to know where the child is living.
The courts expect parents to behave reasonably and communicate openly with each other about things like this, although of course this may not always be possible. If you are being denied information about where you child is living you can apply to the court for a specific issue order.
Can a mother stop a father from seeing their child in the UK?
In the UK, the first priority will always be to ensure that a child’s welfare and best interests are upheld through a relationship with both parents. Both parents share certain rights and responsibilities towards their children, which means that a mother cannot prevent them from seeing their child, unless doing so would not be in the child’s best interests or would be detrimental to their welfare.
Unfortunately, the breakdown in the relationship between parents following a separation can sometimes result in a mother preventing a father seeing their child. Whilst they cannot legally do this, we know it can and does happen.
In these situations, there are steps a father can take to ensure a relationship with their child and maintain regular contact. For example, parents may agree to attend a mediation session to discuss each of their requirements and concerns, a solicitor may be able to help you negotiate the current or future arrangements, or a father can make an application for child arrangements order through the courts.
What are a father's rights if he is not on the birth certificate?
If not named on the child’s birth certificate, a father has no legal/parental rights regarding that child. However, a father can apply for a Parental Responsibility Order, or enter a Parental Responsibility Agreement with the child’s mother to gain parental rights to the child.
What are a father's rights regarding overnight stays in the UK?
Often a father’s rights to overnight stays would have to be discussed and agreed between both parents. However, if not possible it can be beneficial to have this information clearly outlined in a Child Arrangements Order.
There is no restriction on a father having contact overnight if both parties agree or there is a court order determining it is in the child’s best interests to have overnight contact.
Can a father take a child from the mother in the UK?
The only reason why a father could take a child from a mother’s care within the UK is if the child’s welfare and overall safety is at risk.
To be able to legally remove the child from the mother, an emergency application to court must be made by the father to change the current child arrangement agreement. It is crucial that this is done before the child is removed from the mother’s care.
What are a father’s rights during separation?
During a separation, a father and mother both have the right to access their child. In particular, a father who was married to the child’s mother, or is on the birth certificate, will continue to have parental responsibility for the child in the event of a separation.
Parental responsibility is a collection of all the rights responsibilities and duties that a parent has in connection with the child. This includes the right to give consent to medical treatment, have a say in the child’s religious upbringing, attend parents evening, and so on.
What rights does an unmarried father have?
An unmarried father may not immediately have parental rights.
However, there are other ways a father can claim parental responsibility for his child. For example, by having his name on the birth certificate, entering a parental responsibility agreement with the child’s mother, or applying for a parental responsibility order from a court.
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.
Andrew Robotham
Divorce and family lawyer Derby
