What is the legal position?

If you are the father of a child, a useful starting point is determining whether you have ‘parental responsibility’ for your child. This may seem something that is obvious, and which is automatically given to you as a parent, but this is not always the case. It is important to establish this before you take any legal action.

What is Parental Responsibility?

Parental responsibility (PR) is defined as “all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and his property”. Essentially this is your legal rights and responsibilities as a parent in respect of your child. This will include important everyday decisions relating to your child’s welfare and upbringing such as:

• Medical treatment;
• Education;
• Culture & religion; and
• Changing your child’s name.

As a parent, if you wish to make an application to the court in respect of your child then you will need to have PR. If you do not, then you will need the court’s permission to make the application.

Who has Parental Responsibility?

A mother will always automatically have PR.

A father will have PR if:

• He was married to the child’s mother at the time of the child’s birth; or
• Where he is an unmarried father with a child whose birth was registered after 1 December 2003, his name appears on the birth certificate.

A father will not have PR if:

• He is not married to the child’s mother and is not on the child’s birth certificate; or
• He is not married to the child’s mother and the child’s birth was registered before 1 December 2003.

How to obtain PR

If you do not have PR you can obtain this by doing the following:

• Entering into a Parental Responsibility Agreement with the mother of your child;
• Applying to the court for a Parental Responsibility Order;
• Jointly registering the child’s birth.

Approach to living arrangements

If you can’t agree upon arrangements for your child with your co-parent, then you may be in a position whereby you consider making an application to the court for a Child Arrangements Order. This will set out where your child will live and how much time they will spend with each of you. Court proceedings should be used as a last resort and we have referred to alternative ways of dealing with any dispute throughout this booklet. There will be a range of factors that the court will take into consideration when determining what the best outcome should be for the child.

The Welfare Checklist

The key piece of legislation dealing with issues relating to children is the Children Act 1989, which states that the child’s welfare is the paramount consideration when the court is making decisions in relation to the child. The court will consider and apply a ‘welfare checklist’ to assist them in making a decision and the following factors are key.

• The ascertainable wishes and feelings of the child

An assessment of the child’s wishes and feelings will be undertaken by Cafcass or Social Services and they will prepare a report for the court. The court will take into account the age of the child and the level of understanding and maturity that they have in expressing their own views. There is no specific definition of how old a child should be to be able to express their own views, however, the court may tend to place more weight on a child’s wishes from the age of 10 onwards.

It is also important for the court to consider whether the child’s wishes are their own or whether they have been influenced in any way, perhaps by one parent. The court may also determine that the child’s wishes are not in their best interests.

• The child’s physical, emotional and educational needs

The emotional needs of a child are an important consideration as these need to be met by parents. The court will consider which parent is best placed to provide for the child’s emotional needs moving forwards.

• The likely effect of any change in circumstances

Change is inevitable following parental separation, and this will have an impact on any child of the family. The court is required to consider the impact of any change in circumstances upon the child, such as a change of home or schools. Within any court proceedings the court will try to ensure that there is as little disruption to the child as possible.

• The child’s age, sex, background and any characteristics which the court considers relevant

The court will take into account the child’s age, religious and cultural background and any other determining factors that may be specific to the child’s family.

• Any harm which the child has suffered or is at risk of suffering

The court will look at any harm that the child has suffered and any potential risk of harm the child is likely to face in the future. ‘Harm’ will include any emotional, mental and physical harm. Any order made by the court will contain appropriate safeguards that are considered necessary based on the assessment of harm.

The court will also consider what harm may be caused to a child where they do not see both parents.

• The ability of each parent (or parent making the application) of meeting the child’s needs

It will be a priority of the court to ensure that the child’s needs can be put first and that these needs can be met on a daily basis. The court will examine the facts and circumstances of your case and will consider things such as the accommodation that both you and your co-parent are able to provide to the child and the ability to meet the child’s ongoing needs.  There is no presumption that one parent is better placed to meet a child’s needs compared to the other.

One parent’s conduct may be relevant to this factor if it affects their suitability as parents. For example, a criminal record of violence may be relevant. If the parent is looking to share care of the child with someone else, such as their new partner or relatives, then their conduct and suitability will also be relevant.

• The range of powers available to the court

The court must consider all factors contained within the welfare checklist and all available orders that they are able to make using their wide discretion. The court will then make an order which is in the best interests of the child, even if this is different to the order originally applied for. The court will only make an order if it believes doing so would be better for the child than making no order at all.

This checklist is extremely significant when determining arrangements for a child and will be used by the court as a framework for making decisions. You may therefore wish to give some consideration to this prior to making any application to the court.