What Dads Need to Know After Separation

What Dads Need to Know After Separation

1. Introduction

Being a separated Dad is rarely easy. And around Father’s Day it can be especially difficult, particularly if the dad does not see his children.

In this article we will provide an outline of what Dads needs to know, to enable them to have the best possible relationship with their children, post-separation.

We will begin by giving a basic outline of the relevant law, including how the law is changing. Then we will debunk certain legal myths surrounding the issue of fathers post-separation, and we will end by setting out some practical strategies for separated Dads to follow, to help them achieve the best possible outcome.

Before we proceed, we should make it quite clear that this article does not assume that the child will always live with the mother, and have contact with the father. As we will see in a moment, the law does not favour mothers over fathers: it is all a question of what is best for the child’s welfare.

2. The Law That Dads Need to Know

The most important thing for any separated Dad is that they should be informed. And this begins with a basic knowledge of the relevant law relating to children whose parents have separated. These are the most important points to note, beginning with the type of orders that the court can make:

• Child Arrangements Orders: These are orders setting out with whom the child should live, and what contact they should have with anyone else. They are sometimes referred to as “Lives With” and “Spend Time” orders. Note that the court can order that the child lives with more than one person, for example sharing their time with both parents.
• Prohibited Steps Orders: These are orders preventing a person from taking a specified action in relation to a child, without the consent of the court. An example might be an order prohibiting a parent from taking any step that may result in the child being known by a new name.
• Specific Issue Orders: These are orders where the court determines a specific issue relating to a child, for example where the parents cannot agree which school the child should attend.
• The Welfare Checklist: When the court is asked to make any of the above orders it will come to its decision by reference to what it considers to be best for the child’s welfare. In doing this it will have regard to a checklist of factors set out by Parliament, including such things as:
  • The ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding;
  • The child’s needs;
  • The likely effect on the child of any change in his or her circumstances (for example where the court is considering changing contact arrangements);
  • Any harm which the child has suffered or is at risk of suffering; and
  • How capable each of the parents is of meeting the child’s needs.
• Parental Responsibility: The last legal point we want to mention is the often-misunderstood concept of “parental responsibility”. It is misunderstood because some parents believe that it gives them certain rights in relation to the child. But the law does not talk of ‘parental rights’. Instead, it talks of ‘parental responsibilities’, which essentially means the responsibility to make day-to-day decisions in relation to the child, such as what school they should go to, what medical treatment they should receive, and so on. If, as is usually the case, both parents have parental responsibility then they should usually make these decisions jointly. Fathers will acquire parental responsibility automatically if they were married to the mother, or are named as the father on the child’s birth certificate. Otherwise, they may have to apply to the court for a parental responsibility order.

3. Legal Changes Dads Should Know

The law is of course always changing, both to reflect changing attitudes in society and, hopefully, to improve outcomes for families. At this moment, there are two very important changes taking place, which Dads should know about:

• Repealing the presumption of parental involvement: As the law stands at present it states that, when a court is considering whether to make any of the orders mentioned above, it should presume, unless the contrary is shown, that involvement of both parents in the life of the child concerned will further the child’s welfare. This is known as the ‘Presumption of Parental Involvement’. The presumption has most often ‘triggered’ when considering whether a parent should have contact with their child. However, the presumption has come under increasing criticism, in that it can cause a court to prioritise contact with the parent, ahead of other factors relating to the safety of the child (in particular where there are allegations of domestic abuse against that parent). Because of these concerns, the Government recently indicated that it will be repealing the presumption. It is not yet clear when this will happen, but clearly courts will now be proceeding on the basis that there is no longer any presumption. It should not, however, be felt that the repeal of the presumption is a ‘defeat’ for fathers seeking contact with their children. The courts will, as they did before the presumption was enacted, generally proceed on the basis that a child should usually have a relationship with both of its parents, unless there is a very good reason why that should not be so.
• The Rise of Child Focused Courts: The other change is not in relation to the law itself, but rather in relation to the way that courts deal with cases concerning arrangements for children of separated parents. This is happening by the introduction of ‘Child Focused Courts’. Child Focused Courts have currently only been established in certain areas of England and Wales, but they are to be rolled out across the rest of the country over the next three years. And the courts in areas that are not yet covered are likely to adopt many of the ways of Child Focused Courts. As the name suggests, Child Focused Courts will put the child at the centre of the proceedings, for example by requiring Cafcass to prepare a report at the outset of the proceedings, setting out the impact of what is happening upon the child concerned. In this way, it is hoped that the parents will be encouraged to consider how they might make things better for the child, rather than just concentrating upon what they want. For further details of Child Focused Courts, see this article.

4. Debunking Parenting Myths

There are many myths surrounding parenting post-separation, of which the following are perhaps the most common:

• Myth 1: It’s all about “Winning Custody”
  • There are two errors here: Firstly, there are no “winners” and “losers” when it comes to sorting out arrangements for children, and judges most certainly do not think in those terms. As we have said, it is all about the welfare of the child, not the “result” for the parent. Secondly, we do not use the word “custody” – we talk about who the child lives with, and what time they spend with a parent, as we have also seen above.
• Myth 2: “I am entitled to a 50/50 split of the child’s time.”
  • There is no rule or starting-point in the law stating that the child should share its time equally with both parents. As always, the appropriate arrangements are decided on the basis of what is best for the welfare of the child, in the particular circumstances of the case.
• Myth 3: “As a father, I have fewer rights than the mother.”
  • Wrong. Contrary to this popular myth, the law is not biased in favour of mothers. The law is completely neutral. If a court decides that a child should live with its mother, then that is simply because the court believes that that arrangement is best for the welfare of the child.
• Myth 4: “We have to go to court to get a Child Arrangements Order.”
  • No, you do not. As we will explain in a moment, there are good ways to resolve matters without going to court, which should always be considered a last resort. And if you can resolve matters without going to court, you will not need a court order anyway.

5. Practical Strategies for Dads

• Always Put the Child First: This is the most important thing to bear in mind when trying to sort out arrangements for children post-separation. Always ask yourself: Am I doing this for me, or for my child?
• Try to Resolve Matters Amicably: Before rushing off to court, always try to resolve matters amicably with the other parent, if possible. Remember, whatever happens, the two of you will always be your child’s parents, and the better you can get on with each other, the better it will be for your child. And resolving matters amicably saves the stress, time and cost of contested court proceedings.
• Consider Alternatives to Court: And if you cannot resolve matters directly with the other parent, consider using non-court dispute resolution, such as mediation, collaborative law, or Resolution Together. For further information regarding these, see this page.
• Consider Using a Parenting App: Communication between the parents is key to successful parenting post-separation. Consideration should therefore be given to using a separated parenting app, such as OurFamilyWizard, which includes messaging and a shared calendar.
• Seek Expert Advice: This article only scratches the surface of what Dads need to know after separation. For detailed tailored advice, consult an expert family lawyer. Walker Family Law’s specialist family lawyers can provide you with the advice that you need. To find out how you can get in touch with us, see this page.