Fathers and children: the law

What does the law say about fathers and their children when parents separate? What rights do you and your child have? Is the law, or are the courts, biased against dads? We look at your legal position if you're separating.

What are my parental rights?

Parental rights do not really exist in law. Instead, the law refers to parental responsibilities. Parental responsibility (PR, or Parental Responsibilities and Rights (PPR) in Scotland) is a legal status that means that you have a duty to care for and protect your child.

Having said that, PR (or PPR) also gives you the right to contribute to decision making regarding your child's future such as:

• giving consent to medical treatment
• choosing their school
• deciding how they should be brought up
• choosing their name
• choosing their religion

Having parental responsibility does not enable a father to over-ride the mother’s wishes; nor does it undermine her right to make day-to-day decisions relating to the children when they are with her. Neither does it guarantee that you will get what you want from a court.

Where parents can’t agree on major issues, then they will need to go to court - which is also likely to happen if the father doesn’t have PR.

Parental responsibility does not mean having the responsibility to pay child maintenance. And if a father has PR, this does not mean a mother will get fewer state benefits. 

Do I have parental responsibility?

The first thing you should do is to check out whether you have Parental Responsibility or not.

Whether you have PR or not will depend on a number of things. You will already have PR if:

• you are the child’s father and you are married to your child's mother (either when the child was born or at a later date)
• you have adopted the child
• the child was born after 1st December 2003 (or 4th May 2006 in Scotland) and you have been registered on the birth certificate (registered in the UK) as the father  
• Parental responsibility: you and the law

You will not already have PR if:

• you are not married to your child's mum unless, since 1st December 2003 (or 4th May 2006 in Scotland), you have been registered on the birth certificate as the baby’s father
• you are not the natural or adoptive parent

How do I get parental responsibility if I don’t have it?

1. If your child's mum agrees you should have it

If you both agree that you should have PR, then it's very easy - download, print off and both sign a Parental Responsibility Agreement and send it off to the court.

2. If she doesn't sign a Parental Responsibility Agreement, what do I do?

You can make an application to the court. In considering an application from a father, the court will take into account:

• the degree of commitment shown by the father to his child
• the degree of attachment between father and child
• the father's reasons for applying for the order

A court will not unreasonably reject an application for PR, and all decisions should be based on what it considers to be in the child's best interest.

What if I disagree with my child’s mum about contact arrangements?

If you can’t agree with your child’s mum about contact arrangements, you can apply to the courts to order interim contact. In England and Wales, the earliest point in any court process at which this can be done is known as a directions hearing. If there is a degree of agreement between you, a consent order may be made. 

In Scotland, your first chance to ask for interim orders would normally be at a Child Welfare Hearing, which is supposed to be held within three weeks of initiating proceedings concerning children in the Sheriff Court. You can have usually an emergency motion heard before this.

• Contact problems  

The court will try to help you and your child's mother reach an agreement. This may involve a Cafcass officer. In England and Wales, Cafcass is the organisation charged with looking after the interests of children through the court process. If agreement can not be reached, the court may make an order about care and contact. However, it will only do this if it would be better for the child than not making an order.

In Scotland, the court might appoint a reporter who will either be a lawyer or a social worker, the latter typically only if there has already been social work involvement. The pursuer (ie the one launching the proceedings in the first place) usually has to pay for this as part of the legal expenses, though if they “win” the case the costs may be recoverable from the other party. 

• Family Courts: residence and contact orders  

Do I have any rights to see children I have been a stepdad to?

It can be very difficult to maintain relationships with step-children after separation. Ideally, their mother will recognise and support her child’s ongoing relationship with you. If she prevents contact between you and the child it is possible to apply for a contact order if the children lived with you for at least three years.

In Scotland, anyone showing an interest in the child can apply for a contact or other order concerning them. Being a step dad would almost certainly be sufficient grounds to ask a court for this – though not necessarily to get it.

Is the law biased against fathers?

The law itself is not biased against either mothers or fathers but individuals (including judges) can have their own attitudes towards the value of mothers and fathers to children. When the courts come to decide any matter concerning a child’s upbringing, their paramount consideration should be the welfare of the child. Increasingly, it is recognised that fathers have a significant role to play in their children’s lives after separation, and it's now relatively rare for a father to be denied contact altogether.

Author

Nick Woodall from the Centre for Separated Families works with all affected by separation, promoting policies that recognise men’s ongoing parenting input after a split. With two teenage children and a step daughter, he's been a separated parent for 13 years. In 2007 he wrote "Putting Children First" with wife and colleague, Karen.

He has also written on parenting and gender, applying an ethic of care to post separation parenting choices and barriers to men’s parenting post separation, and he works as a freelance writer and editor.

Buy a copy of Nick and Karen Woodall's Putting Children First: a handbook for separated parents

Your thoughts

The family court process is not based on a rights perspective – not on fathers’, mothers' or even children’s rights. The system is based on child welfare principles – with judges and other court personnel basing judgments and recommendations on what they perceive to be “in the best interests of the child” – which can be very subjective. Does the family court system operate in the best interests of children? What are your thoughts about the way the law operates? Use our comments system below to share your thoughts.