Understanding Fathers’ Rights

The term ‘fathers’ rights’ crops up quite frequently in family law discussions, but exactly what ‘rights’ do fathers have, and how do they differ from the rights of a mother?

To answer the question, we must look at two matters: firstly, the issue of parental responsibility, and secondly the question of what arrangements should be made for the child to live with, or spend time with, each parent.

Before we look at the first of those matters, we should say something about the use of the word ‘rights’ in relation to children.

Despite the fact that, as we will see in a moment, the word ‘rights’ does appear in the legal definition of parental responsibility, judges do not in general like to use that term, preferring instead to talk in terms of a parent’s responsibilities towards their child. Parents do not really have ‘rights’ in respect of their children, but they certainly have responsibilities.

Parental Responsibility: What is it?

There is an awful lot of confusion and misunderstanding as to what the term ‘parental responsibility’ actually means.

The legal definition of parental responsibility is: “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.”

As will be noticed, the definition does not include any list of parental responsibilities. The reason for this is that it would be very difficult to provide a definitive list, particularly as ideas of what may be included are likely to change as society changes.

However, certain things are generally accepted to be included, such as choosing which school the child should attend, making decisions as to the child’s religious upbringing, and making decision regarding the child’s medical treatment.

Obviously, most fathers would want to have a say regarding such matters, and if they have parental responsibility then they will have a say (if a matter is not agreed with the mother then the court can be requested to decide it).

So how does a father acquire parental responsibility?

Parental Responsibility: How is it acquired?

This is the one area where the laws regarding the ‘rights’ of mothers and fathers differ. A mother will always automatically acquire parental responsibility for their child, but a father will not necessarily acquire it without taking certain action.

There are basically four ways in which a father can acquire parental responsibility:

1. Where the child’s father and mother were married to, or civil partners of, each other at the time of the child’s birth, then the father will automatically acquire parental responsibility for the child.

2. Where the child’s parents were not married and the father is named as the father on the child’s birth certificate then he will acquire parental responsibility for the child.

3. Where the child’s mother and father make an agreement (a “parental responsibility agreement”) providing for the father to have parental responsibility for the child.

4. Lastly, where the court, on the father’s application, orders that he shall have parental responsibility for the child. Here, it should be said that in the vast majority of cases the court will award the father parental responsibility. The law takes the view that it will usually be best for the child if both of their parents have parental responsibility, and therefore a father’s parental responsibility application will only be refused if there is a very good reason.

Having parental responsibility is unlikely to make any practical difference to a father from one day to the next. In most cases, the exercise of parental responsibility is only likely to happen on an occasional basis, when some particular matter arises in relation to the child’s upbringing.

But what will make a difference is the arrangements as to how much time the child spends with each parent. If the parents are unable to agree these arrangements then either of them can ask the court to decide the matter, by making a child arrangements order.

Child Arrangements Orders

The term ‘child arrangements order’ is defined to mean an order regulating arrangements relating to any of the following:

(a) With whom a child is to live, spend time or otherwise have contact, and

(b) When a child is to live, spend time or otherwise have contact with any person.

In many cases the order will cover two things: which parent the child should live with, and what contact the other parent should have with the child. However, it is quite possible for the order to state that the child should share its time with both parents, in which case there will be no ‘contact’ element of the order.

So how does the court decide what the child arrangements order should contain?

The first thing to note is that the child’s welfare is the court’s paramount consideration. In other words, whatever decision the court makes will be based upon what it considers to be best for the welfare of the child.

The second thing to note, and this can be of particular relevance to fathers, is that the court must presume, unless the contrary is shown, that the involvement of both parents in the life of the child concerned will further the child’s welfare. This does not mean, as is sometimes thought, that each parent is entitled to have the child spend an equal amount of time with them but simply that the child should usually spend time with both of their parents, unless there is a good reason why this should not be so.

And the last thing to note is that, when deciding upon what order to make, the court must have regard in particular to certain specific matters, set out in what is known as the ‘welfare checklist’. Those matters include the following:

1. The ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding. Thus with an older child the court is likely to give greater weight to the child’s wishes, and with a teenaged child their wishes may determine the outcome of the case. But this will only apply if the court is happy that they are the child’s genuine wishes – if, for example, the court believes that the child is only saying what the mother has coached them to say, then what the child says may carry little or no weight. There have even been cases where the court has transferred the residence of a child from the mother to the father, following a finding that the mother has sought to alienate the child from the father.

2. The child’s physical, emotional and educational needs. If the child has any special needs then the capability of each parent to meet those needs will obviously be a greater factor – see paragraph 6 below.

3. The likely effect on the child of any change in their circumstances. This refers to the situation where the order is likely to change the child’s circumstances, for example by stating that the child should have contact with a parent for the first time, or after a long period with no contact. Obviously, therefore, if a father has been denied contact by the mother he should seek to have the contact re-established as quickly as possible.

4. The child’s age, sex, background and any characteristics which the court considers relevant. This does not mean, as is sometimes believed, that the court will automatically favour a mother with a very young child, or with a female child, just that the court should take into account these matters, if it considers that they are relevant.

5. Any harm which the child has suffered or is at risk of suffering. Obviously, if the court finds that the child has suffered, or is at risk of suffering, harm at the hands of one parent then this will be a major factor in its decision making. If one party alleges that the child has suffered harm due to the behaviour of the other party then the court will determine the truth of those allegations, usually at a ‘fact-finding’ hearing, before making its final decision. Thus, for example, if a father applies for contact with his child and the mother alleges that the she or the child has been abused by the father, then the court will investigate the mother’s allegations, and decide if they are true. If they are found to be true then the court may, for example, decide that the father should only have supervised contact with the child, or even only indirect contact, for example via email and telephone calls.

6. Lastly, how capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs.

It will be seen from all of the above that the law in relation to child arrangements orders does not differentiate between mothers and fathers. Both are treated equally. It may of course be that courts more often make orders that children should live with their mothers than with their fathers, but that is simply because it is more common for a court to find that the child’s welfare will be best served by living with their mother.

There is one more important thing to mention before we leave child arrangements orders, and that is that the orders must of course be obeyed. If, for example, a father has an order that he have contact with his child and the mother fails to obey the order then the father should ask the court to enforce the order. The court will normally take enforcement action, unless there are good reasons why the order has not been obeyed.

Fathers’ Rights: Summary

To summarise, most fathers will have exactly the same rights as mothers. The law does not differentiate – it treats mothers and fathers in exactly the same way.

As we have seen, the only difference, and in most cases it is no more than a technicality, relates to the way in which fathers acquire parental responsibility for their children.

But as we have also seen, most fathers will get parental responsibility, and that just leaves the matter of child arrangements, where there is no difference at all between the ways that the law treats each parent.

For more information about child arrangements orders, see this page.