According to the Children and Family Court Advisory and Support Service (CAFCASS), private law proceedings involving children are increasing – it worked with 97,098 children in such cases in 2022/23 compared with 82,818 in 2017/18 – an increase of 17.2%.
Although it is common to refer to child custody and access arrangements, these terms were changed with the introduction of the Children Act 1989.
Instead, we refer to parental responsibility and child arrangements. This updated the view that one parent should be awarded custody (previously referred to as 'residence') while the other had access (previously referred to as 'contact') and instead meant that parents were to be viewed and treated in more even terms under the umbrella terminology of 'child arrangements'.
Child arrangements orders set out where your child will live and with whom, as well as how much time they will spend with each parent.
These orders should protect and represent your child's best interests and will take into consideration their age, sex, background, physical, emotional, and educational needs, to name a few.
It is important to note that a mother automatically has parental responsibility for her child from birth.
As a father, you usually have parental responsibility if you are married to the child's mother at the time of the child's birth and/or are listed on the birth certificate.
If you are an unmarried father, you can acquire parental responsibility under specific conditions. There are three ways an unmarried father can get parental responsibility for his child:
- Jointly registering the birth with the mother (if the child was born after 1 December 2003)
- Obtaining a parental responsibility agreement with the mother
- Getting a parental responsibility order from a court.
Without parental responsibility, you have very few rights regarding your child. If you are a father, you can apply for parental responsibility.
Factors influencing the court's decision
Every case and every family is different, so the court takes careful consideration of all the issues arising from a specific case before deciding on what it believes is in the best interests of your child.
The court will consider:
- The wishes of your child, taking into consideration their age and understanding
- The physical, emotional and educational needs of your child
- How the changes in circumstances could affect your child
- If there are any characteristics your child has that are relevant
- If your child is at risk of suffering or has suffered any harm
- How capable each parent is in meeting your child's needs.
Parental responsibility
Parental responsibility is the legal term that describes your rights, duties and responsibilities towards your child.
It is not linked to the right to see your child. Instead, it covers the rights and responsibilities you have for your child. If you have parental responsibility, you have the same rights and responsibilities as the mother or anyone else who has parental responsibility.
It includes the fact you have a say in:
- Their well-being and care
- Where they should live
- Where your child is educated
- Consent for medical treatment for your child
- Being able to represent your child during certain legal proceedings
- What religion, if any, they should practise.
Legal rights of fathers
The law says both parents are responsible for their children and that all children have a right to a meaningful relationship with both of their parents. It means the rights of a father are as important as those of the mother, with equal rights to access and care for their children.
However, a father's rights also depend on whether or not he is married to the mother, if he is named on the child's birth certificate, or if he is deemed to have parental responsibility (see above); essentially, he needs parental responsibility to be on an even legal footing with mother.
When separating parents cannot agree on whether and/or how much contact a father should have with his children, the father may need to apply to the family courts to gain contact through legal channels.
If the parents are married, or the father is named on the birth certificate, he does not lose parental responsibility when he separates from the mother. Once in place, parental responsibility can only be removed in the most exceptional of circumstances, such as by court order following the adoption of a child.
It is important to note that under most circumstances, a mother should not prevent a child from being in contact with their father unless there are real and significant safeguarding concerns, meaning this would not be safe or in the child's best interests. It is almost always going to be the case that some form of contact is going to be appropriate and should be encouraged.
Establishing paternity
If a man is married to the mother at the time of a child's birth, he is automatically deemed, in law, to be the father unless the contrary is shown.
However, unmarried fathers are not automatically registered on the birth certificate of their child and can only be included if the mother consents, essentially confirming he is the father to the child.
Cohabiting couples tend to agree to declare paternity and sign the birth certificate jointly.
However, if the parents split up before the birth, the mother has no legal obligation to include the father on the birth certificate, although it will almost always be the case that she should include his name. That will mean he has no parental rights.
It can be added later if the mother applies to the General Register Office for the birth to be re-registered.
If there is a paternity dispute, the court can order a DNA test, and if you are proven to be the biological father, it can make a Declaration of Parentage. This informs the Registry Office that the birth can be re-registered to include the father's name.
Child arrangements orders
A court determines a child arrangements order under section 8 of the Children Act 1989. It can be used to determine several key factors about a child's life, including:
- Their well-being and care
- Where they should live
- Who they should spend time with, and how often
- Going on holiday
- Where your child is educated
- Your child's name
- Consent for medical treatment for your child
- What religion, if any, they should practise.
The court starts from the viewpoint that it is better for a child if a parent is involved in their lives.
Generally, a child arrangements order lasts until your child is 16, but the court can make orders lasting up to 18 in some circumstances.
These orders can change if parents' circumstances change or if a child's needs change as they get older. Applications to change can be made in circumstances such as:
- Your employment changes, which means you can no longer manage the existing contact arrangements, and they need to be varied
- You move home
- The needs of your child have changed.
If you and the other parent cannot agree, you may need to consider mediation or seek legal advice in the first instance. You cannot apply straight to court if you and the other parent cannot agree the arrangements for your child; the court expects you to try everything else before you ask the court to try and find a solution for you.
Anyone with parental responsibility can apply for a child arrangements order or to change an existing child arrangements order. This could be a parent, guardian or special guardian; a step-parent or other person with parental responsibility; anyone with parental responsibility and is named in a child arrangements order; a father married to, or in a civil partnership with, the mother but who is not named on the birth certificate; a local authority if the child is in care; a foster parent or other relative, if the child has lived with them for one year before the application; anyone who has lived with the child for three years.
Mediation and alternative dispute resolution
Courts like parents to try to resolve any issues via mediation before going to court. This is because litigation can take months – or even years – to conclude, while alternative dispute resolution can take less time and be cheaper. Further, the court wants to encourage parents to make their own choices regarding their children rather than handing over the reins to perfect strangers to decide.
Before making an application to the court, applicants must attend a mediation information and assessment meeting (MIAM), which tries to explore and resolve the problem without the need to go to court.
If the mediator cannot resolve the issue, or one parent refuses to engage in mediation, an application for a child arrangements order can be made to court via a C100 form, either online or by sending it directly to the family court. Negotiation can also be attempted before turning to the court for a solution.
Once this form is issued, a timetable is set.
The Children and Families Court Advisory and Support Service (CAFCASS) will then start to make safeguarding enquiries with the police and social services and with both parents. As this is an early stage, CAFCASS will discuss only safety and safeguarding issues about the children, if any exist.
The First Hearing Dispute Resolution Appointment (FHDRA) takes place after the application is issued and after the Cafcass safeguarding checks are complete.
At this hearing, the court examines the safeguarding information gathered by CAFCASS and will try to understand what are the issues between the parents and whether there is room to agree on any, some or all of them without the need for further proceedings. If this is the case, the court makes a final order, and the case ends.
If no agreement can be made, the court will decide how to progress the case or prepare for a fuller hearing.
At the FHDRA stage, interim orders can only be made about the child's arrangements if the parties agree. If there are welfare concerns about one of the parents, CAFCASS may be ordered to prepare a more detailed report for the court to assist the court in resolving the issues.
The court may have to decide on other issues, such as domestic abuse allegations, which are denied. In this case, both the applicant and respondent may have to prepare written evidence and give oral evidence, potentially at a completely separate hearing known as a 'Fact Finding Hearing', before the case can progress any further.
The dispute resolution appointment (DRA) is the second hearing and is used to assess the remaining issues, what evidence, if any, is going to be needed to resolve them and whether at that stage there is any room for agreement on any of the remaining issues. If the case can be agreed at this hearing, a final order is made, and the case will be closed.
However, if disagreements continue, the case will be listed for a final hearing, and the court will require both parties to file and serve statements of evidence.
The final hearing is a type of trial where the applicant and respondent will likely give evidence. However, this is only sometimes necessary, and have the opportunity to challenge the other's evidence.
CAFCASS might also attend if it has been asked to prepare a report and can be asked about its recommendations.
After listening to the evidence, the judge will make a final order for the arrangements for the children.
Seeking legal representation
Most parents are keen to ensure they achieve the best arrangements for their child or children. It is a highly emotive subject and one that can quickly turn into a conflict.
This helps no one – and if the best interests of the child or children are at the heart of a custody case, it means clear heads are required to find a constructive result that meets everyone's needs.
Our specialist family lawyers use various solution-based strategies, including collaborative law, to help resolve the most complex legal cases. This way, we can help you find the most reasonable way of ensuring your child's needs come first while you avoid additional stress, costs and delays when it comes to court proceedings.
Navigating child custody disputes
Do:
- Put the needs of your child first: this should always be your priority.
- Follow the court order: once a child arrangements order has been put in place, it is important to follow it. Your former partner in court could challenge failure to do so, and it may be used against you in future hearings.
- Communicate: effective communication with your former partner is key – and be open to compromise. Stay calm and focused.
- Keep documents: emails, texts, and phone calls are important as you build your case. If you have been involved in any other aspects of your child's life, such as attending school events or taking them to medical appointments, keep evidence as it documents how involved you are with your child's life.
- Pay maintenance: keep up to date on any maintenance payments, as failure to do so could affect your chances of how often you can see your child. Even if you are not seeing your child and you are unhappy about it, they still need to be kept warm, fed and clothed.
Don't:
- Resort to using your child as a bargaining chip: this could be emotionally damaging to your child.
- Criticise your former partner or speak badly about them in front of your child.
- Ignore child arrangements orders. Even if you disagree with it, follow the rules and look at making changes in the future.
- Make promises you cannot keep. Be honest with your child about the arrangements for their care.
- Use the withdrawal of maintenance as a means to punish the other parent. It won't help and only ultimately punishes the child.
Resources and support for fathers
There are myriad resources that can provide advice for fathers, from organisations and support groups to assist fathers in custody battles to accessing emotional support, counselling, and parenting programmes.
Conclusion
It is important to remember that if you are a father with parental responsibility – you are married to the mother of your child and/or you are named as the father on the birth certificate – those rights do not disappear if you separate from your partner.
The law says both parents are responsible for their children and that all children have a right to a meaningful relationship with both of their parents. It means the rights of a father are as important as those of the mother, with equal rights to access and care for their children.
If you are concerned that you are not having the right access to your children, please speak to one of our child arrangements and custody team.
