By Leah Caldwell | Family & Children | March 2024

---

What rights does a father have to see his child?

It is not uncommon for a parent to refer to their ability to have a relationship with their child as their ‘right’. Further, where contact between that parent and their child has been stopped or limited by the other parent, it may be assumed that the law should intervene to protect that parent’s right to see their child.

However, it is important to note that the law focuses on ‘parental responsibility’ rather than ‘parental rights’. This language was deliberately adopted to recognise that children are not property or chattels, but people in their own right.

So then, what of parent’s rights - father’s rights, mother’s rights to see their child or children? Research supports that, provided that is not unsafe or otherwise inappropriate, it is in a child’s best interests to have a relationship with both of their parents and it is both parents’ responsibility to try and facilitate this.

Navigating the above concepts can often feel daunting, particularly in situations where family dynamics evolve due to separation or divorce.

This blog serves as a comprehensive guide not only for fathers in the UK seeking clarity on their legal rights to see their children, but also for both parents to help them to understand their rights and responsibilities in relation to their children.

Parental responsibility: legal definitions and frameworks

Parental responsibility refers to the legal rights, duties, powers, responsibilities, and authority a parent has for a child and the child's property. A mother automatically has parental responsibility.

A father can obtain it by:

• Being married to the mother at the time of the child’s birth.
• Being listed on the birth certificate (for births registered from December 1, 2003, in England and Wales, from May 4, 2006, in Scotland, and from April 15, 2002, in Northern Ireland).
• Obtaining a parental responsibility agreement with the mother or a court order.
• Obtaining a Residence Order prior to 22 April 2004
• Being named as the resident parent in a Child Arrangements Order

The framework is designed to ensure that children's needs are met: safety, education, and well-being. It isn’t about parents' rights over their children, but about children's rights to be cared for by their parents.

Can one partner stop a father from seeing their child?

Insofar as there is a legal presumption that the involvement of both parents in a child’s life is beneficial for them, both parents are expected to ensure that their child/ children has a relationship with the other parent unless doing so would bring risk to the child’s wellbeing or safety.

If separated parents cannot agree on a parenting plan, then family mediation can help both parties come to a mutually acceptable decision. If an agreement can’t be drawn up from mediation, then either parent can apply to the court for an order regarding arrangements for their child.

Unless the father poses a risk to the child's welfare, the court usually maintains that the child has a right to a relationship with both parents.

When and how would a parent lose the right to be involved in their child’s life?

The best interests of the child are of paramount importance when a court makes any order concerning a child. Therefore, if there is any risk to a child, this would override the presumption that involvement with both parents is in their best interests.

Risk to the child’s safety

One of the primary reasons why courts stop contact between a child and a parent is where there are concerns about the child's safety and well-being. If there is evidence of physical, emotional, or sexual abuse by a parent, the courts are likely to intervene to protect the child. This also extends to situations where a parent's behaviour, perhaps due to substance abuse or serious mental health issues, poses a risk to the child's safety.

Evidenced neglect

Another scenario where a parent might be denied contact is in cases of proven neglect. Neglect can encompass a range of behaviours, from failure to provide basic needs to a lack of emotional support and attention. The courts may view such neglect as detrimental to the child's development and well-being.

Domestic violence and abuse

Domestic violence and abuse is also a critical factor. Exposure to domestic violence and abuse, even if it is not directed towards the child, can have severe psychological impacts.

A parent’s compliance with court orders

The court may also have regard to the parent's compliance with existing court orders and a willingness (or otherwise) to cooperate with the other parent. Persistent non-compliance, refusal to engage in constructive communication, or actions that deliberately undermine the child's relationship with the other parent can be factors that a court will have regard to.

It's important to note a decision by a court to stop contact with one parent is not taken lightly. The courts typically prefer to maintain the child's relationship with both parents wherever possible, considering it an important factor in the child's overall well-being. Before arriving at a decision, the court thoroughly reviews all evidence and considers various factors, including reports from child welfare experts and the child's own views, depending on their age and understanding.

In cases where parents lose the ability to have contact with their children, the decision is not necessarily permanent. The courts can reassess the situation if circumstances change, especially if the parent demonstrates a commitment to addressing the issues that led to the court's initial decision. Parents in such situations are often encouraged to seek legal counsel and support to navigate the complexities of family law and work towards regaining their rights in a manner that safeguards the child's best interests.

What are valid reasons to stop a parent having contact with a child

In the context of family law, there are specific circumstances where it might be deemed appropriate to limit or stop a parent’s contact with their child. These reasons are generally centred around the welfare and best interests of the child. Some of the valid reasons include:

• Child Safety Concerns: If there's evidence that the child's safety is at risk due to a parent’s behaviour, such as instances of physical, emotional, or sexual abuse.
• Substance Abuse: If a parent struggles with substance abuse that impairs their ability to safely care for the child.
• Domestic Violence: Exposure to domestic violence, even if not directed towards the child, is considered harmful.
• Neglect: Situations where a parent fails to provide adequate care, supervision, or attention to the child's needs.
• Mental Health Issues: If the parent’s mental health condition poses a risk to the child.
• Abduction Risk: Concerns that a parent might abduct the child, especially in international custody cases.

In such cases, the court may intervene to restrict or terminate a parent’s ability to have contact with a child, always with the child's best interests as the guiding principle.

Stopping contact with a child when there is no court order

When there is no court order in place, either parent does not have a legal mandate to unilaterally stop the other from seeing their child. However, in practice, it's not uncommon for one parent to attempt to limit or stop contact.

Here’s what should be considered:

• Mutual Agreement: Ideally, both parents should agree on the terms of contact with a parenting plan. If one parent is withholding access to the child, it's recommended to try and resolve the issue through dialogue first.


• Mediation: If direct communication is challenging or unsuccessful, mediation can be a constructive step. Going through family mediation can help parents reach an agreement that's in the child's best interest, with the help of a professional mediator to help you understand your options.


• Legal Advice: If you come to an agreement in mediation, you may want to make the agreement legally binding through an official court order. Your mediator can guide you through the process of obtaining a court order and its implications.


• Applying for a Court Order: As a last resort, a parent can apply to the court for a Child Arrangement Order. The court will then decide based on the child's welfare. It's important to handle these situations sensitively. Unnecessarily restricting contact can harm the child's relationship with the other parent and might have legal repercussions. If a parent believes there is a legitimate reason to stop contact, professional advice should be sought to ensure the approach is both legally sound and in the best interest of the child.

How do courts assess and enforce contact rights?

As detailed above, when considering a child’s contact with their parents, the courts adhere to a principle that prioritises the child's best interests. The court's approach is not to favour one parent over the other but to consider what arrangement will most benefit the child. This is done through a thorough and careful examination of several factors.

Child’s Welfare

The primary consideration is always the child's welfare. The court uses what is known as the 'welfare checklist' to guide its decision-making. This checklist includes the child's physical, emotional, and educational needs, the likely effect of any changes in the child's circumstances, and the child's age, sex, background, and any characteristics that the court considers relevant. The ability of each parent to meet the needs of the child is also a crucial factor.

Additionally, the courts assess the potential harm the child might face. This includes any harm the child has already suffered or is at risk of suffering. If there are allegations of abuse or neglect, these are taken very seriously and investigated.

The child's own views are also taken into account, especially as they get older. While these views are not decisive, they are considered important, particularly in cases where the child can clearly express their wishes and feelings.

The court also evaluates how each parent has fulfilled their parental responsibilities in the past. This includes the willingness to maintain a relationship with the other parent and facilitate contact. The courts discourage any behaviour that might harm the child's relationship with the other parent, barring safety concerns.

Court Enforcement

To facilitate plans for children, courts can issue several types of orders, such as Child Arrangement Orders, which specify with whom the child will live, spend time, or otherwise have contact. These orders can also stipulate conditions for visitation, such as supervision requirements.

In cases where one parent does not comply with a court order, the court has the power to enforce the order. This might include mandating makeup visits for missed time, financial penalties, or, in extreme cases, changes in living arrangements or legal consequences.

Throughout this process, the courts aim to ensure that the decisions made serve the best interests of the child, fostering a healthy, stable, and nurturing environment for their growth and development.

Child arrangement orders

Child Arrangement Orders are legally binding decisions that clarify where a child will live, who they will spend time with, and when these interactions will occur. They are typically used when parents cannot agree on these matters. The orders can cover a wide range of specifics, including:

• Residence: Determining where the child will primarily reside.
• Contact: Outlining how and when the child will spend time with the non-resident parent, which could include overnight stays, visits on weekends or holidays, and indirect contact like phone calls or video chats.
• Special Occasions: Arrangements for birthdays, holidays, and other significant events.

Child Arrangement Orders play a pivotal role in determining how separated parents will care for their children. These orders, issued by the court, are designed to ensure that the child’s welfare is at the forefront of any decision-making process regarding living arrangements, visitation, and overall care.

How are Child Arrangement Orders Determined?

The process of obtaining a Child Arrangement Order usually begins with clients attending a Mediation Information and Assessment Meeting. Where safe and appropriate, it is recommended that parents attempt mediation, as courts generally prefer parents to reach an agreement amicably.

In some instances, especially when the child is of a certain age and maturity, themediator may engage directly with the child. This conversation is conducted sensitively, ensuring the child's views are heard without placing them in a position of making decisions or choosing sides. The mediator may ask a variety of questions. It's an opportunity for the child to express their feelings and thoughts, which can be an important factor in shaping the agreement.

If mediation is unsafe or otherwise inappropriate, or has concluded with some or all issues unresolved, or you’d like to turn the mediation agreement into a legally binding agreement, the case proceeds to a family court.

In the court, the paramount consideration is the child’s welfare. The court utilises the 'welfare checklist,' which includes factors like the child's physical, emotional, and educational needs, the likely effect of any change in their circumstances, and their age, sex, background, and any characteristics that the court considers relevant. The child’s own wishes and feelings are also considered, particularly as they get older.

Enforcement and modification of orders

Once a Child Arrangement Order is in place, it is legally binding. If one parent fails to comply with the order, the other parent can return to court for enforcement. The court has various powers to enforce the order, including fines or, in extreme cases, altering the primary residence of the child.

Moreover, these orders are not set in stone. As children grow and circumstances change, it may be necessary to modify the arrangements. Either parent can apply to the court to have the order reviewed and adjusted.

Do unmarried fathers have rights?

In the United Kingdom, the rights of unmarried fathers are a topic of significant interest. As previously set out in this blog, the notion of parental rights is typically seen through the lens of a parent’s responsibility to act and make decisions that are in the best interests of the child, what is known as ‘parental responsibility’.

Where a father is unmarried he still has parental responsibility via the following means'

1. Being named on the birth certificate: For children born after certain dates (1st December 2003 in England and Wales, 4th May 2006 in Scotland, and 15th April 2002 in Northern Ireland), an unmarried father can gain parental responsibility by being registered on the child's birth certificate.
2. Obtaining a Residence Order prior to 22 April 2004 or being named as the resident parent in a Child Arrangements Order
3. Parental responsibility agreement: An unmarried father can acquire parental responsibility if he enters into a formal agreement with the mother. This is a signed document in which both parents agree to share parental responsibility and must be registered with the court.
4. Court order: If the mother is unwilling to enter into a parental responsibility agreement, the father can apply to the court for a parental responsibility order. The court will consider the degree of commitment the father has shown towards the child and whether the order would be in the child's best interest.

Once an unmarried father has parental responsibility, his rights and obligations towards his child are similar to those of a married father. He has a right to be involved in important decisions about the child's life, including their education, religious upbringing, and medical treatment. He also has a duty to support and provide for his child financially.

It's important to note that having parental responsibility does not automatically guarantee a right to contact or custody. These are separate issues which may need to be resolved through mutual agreement, mediation, or court orders, particularly if the relationship between the parents breaks down.

What rights does a step-father have?

Step-fathers do not automatically gain parental responsibility for their step-children upon marriage to the child's mother or through other means. However, there are specific ways in which a step-father can acquire certain rights and responsibilities.

• Parental responsibility agreement: A step-father can gain parental responsibility if both biological parents (who have parental responsibility) and the step-father enter into a parental responsibility agreement. This agreement must be formally made and registered with the court.
• Court order: In situations where a parental responsibility agreement is not feasible, a step-father can apply to the court for a parental responsibility order. The court will consider the relationship between the step-father and the child, the degree of commitment shown by the step-father, and the potential impact on the child's welfare.
• Adoption: Another way a step-father can acquire parental rights is through adoption. Adopting a step-child is a significant legal step, transferring all rights and responsibilities from the biological parent to the adoptive parent (the step-father in this case). This process requires the consent of both biological parents unless their rights have been legally terminated.

Having parental responsibility means that the step-father has a legal duty to care for the child and the right to make decisions about their upbringing, such as education, health, and welfare. However, this does not diminish the rights and responsibilities of the biological parents.

Move forward with mediation

If you're a father seeking to understand your rights, or if you're involved in a dispute regarding child access, our expert mediation team is here to help. We specialise in family mediation and offer tailored support to navigate these sensitive matters.

Let our expert mediators assist you in maintaining and strengthening your bond with your child, ensuring their best interests are always at the forefront. For more information or to get started, contact us today.

The goal of making agreements legally binding is not to create a rigid framework but to provide a clear, enforceable structure that supports the best interests of your child and respects the agreements reached by both parents.

FAQs

Does a father have the right to know where his child lives?

A father has the right to know where his child lives, particularly if he has parental responsibility for the child. In the UK, parental responsibility grants a parent the right to be involved in important aspects of their child's life, which includes knowing the child’s whereabouts.

However, there are certain situations where this right might be challenged or restricted, especially in cases involving domestic violence, abuse, or other safety concerns. If a mother (or primary caregiver) believes that disclosing the child's location to the father might put the child or herself at risk, she may seek legal intervention to limit this right. In such cases, the court will prioritise the child's welfare and safety while making a decision.

What are a father’s rights if he is not named on the birth certificate?

In the UK, if a father is not named on the birth certificate, he may not automatically have parental responsibility.

A father in this situation can acquire parental responsibility through various means:

• Joint Registration: The mother and father can re-register the birth to add the father’s name to the birth certificate , thereby granting him parental responsibility.
• Parental Responsibility Agreement: If the mother agrees, both parents can sign a parental responsibility agreement, which must then be registered with the court.
• Court Order: The father can apply to the court for a parental responsibility order. The court will consider the father’s commitment and attachment to the child and whether granting parental responsibility would be in the child's best interests.

Once parental responsibility is acquired, the father has the same rights and responsibilities as any other parent with parental responsibility. This includes the right to be involved in important decisions about the child’s life and, potentially, to seek contact or custody arrangements through the court if necessary.

How long does a father have to be absent to lose his rights?

There isn't a timeframe set in law that dictates how long a father must be absent to lose his rights to his child. Rather, the focus is on what is in the best interests of the child.

Parental responsibility, which a father may have if he meets certain criteria (such as being married to the mother at the child's birth or being listed on the birth certificate), does not automatically expire or get revoked due to a period of absence. However, long-term absence can impact various aspects related to his rights and responsibilities:

• Contact: Continuous absence might affect the relationship between a father and their child. If a father seeks to re-establish contact after a long absence, the court will consider the child's current circumstances and welfare when making decisions. The best interests of the child are the court's primary concern.
• Decision Making: While a father retains his legal responsibilities, his influence in decision-making about the child' s upbringing might be less if he has not been actively involved.
• Modification of Orders: If a father with parental responsibility has been absent for a significant period, the mother or primary caregiver might apply to the court for changes in contact, which the court may grant if it deems these changes to be in the child's best interests.
• Legal Intervention: In extreme cases, if the father's absence is considered abandonment and negatively impacts the child, there might be legal consequences. However, this is typically considered in more severe cases and is not a direct result of the absence alone.

It's important for fathers to understand that re-establishing a relationship with a child after a long absence must be handled sensitively and legally. The process often involves gradual reintroduction and consideration of the child's emotional and psychological well-being.

Get in touch using our online form, or contact us by phone or email:

Tel: 0330 320 7600
Email: office@mediationfirst.co.uk.