Updated March 2020
A separation can be a difficult time for everyone involved, but it’s particularly life-altering when there are children in the picture. If you’re a father, you’re probably wondering what your rights are to see your children. We answer the question, “what is reasonable access for fathers?”
As a father, it’s understandable that you want to be able to spend time with your children, regardless of your relationship status and whether you and your ex-partner are on good terms. When it comes to arranging to see your children, you may want to keep it out of the courts to save additional stress and expense not just for you and your ex, but also for your child. Fortunately, many arrangements are made without having to involve the court, but there are exceptions. In this post, we look at reasonable access for fathers after a relationship or marriage has ended.
What Happens When Parents Separate?
When you and your ex-partner separate and there is a child — or children — involved, what immediately happens will depend on a number of factors and your unique circumstances. The first step is to determine whether you have “parental responsibility”.
If you weren’t married, and have separated in the sense that you are no longer living together or are a couple, the mother is deemed to have parental responsibility. You also have parental responsibility if:
- You were present at the birth and your name is on the birth certificate as the father
- There was no father named on the birth certificate, but the birth was later re-registered naming you as the father
- You have signed a parental responsibility order or agreement.
If you were, or still are, married to the child’s mother, you automatically have parental responsibility, which means you have responsibilities towards your children.
What Does This Mean?
Parental responsibility means that you have the right to be consulted on the upbringing of your child, regardless of whether they live with you or not. In practice, as the father, you have a say in:
- Where the child goes to school
- Whether the child can change their name
- Appointing a guardian in the event of the death of a parent
- Whether your child can have certain medical treatment
- If the child can be taken abroad for a holiday
- Whether the child should be brought up with certain religious values.
If you have parental responsibility, it may be reasonable to assume that as a father, you have rights for reasonable access to your children. However, it’s important to note that contact is not your right, or even necessarily the right of the mother or the parent the child is living with — it is the right of the child.
It is typically in the best interests of the child to have contact with both parents. Evidence shows that separation can have a significant impact and may cause a child to exhibit behavioural problems, such as acting out. Such behaviour is understandable given that the child may be feeling hurt, confused and frustrated. This makes it vital that they have a solid bond with their father and are brought up with contact with both parents.
The court isn’t biased when it comes to providing or denying access to a father; it simply wants what is best for the child. You will be encouraged to work with your ex-partner to agree on contact arrangements unless contact should be restricted to protect the child; for example, if the child was raised in an abusive household or is at risk of harm. Assuming there is no domestic violence or other concerns preventing contact, the child may still refuse contact with the non-resident parent — especially if they’re older and more aware of the problems that led to the relationship breakdown. We’ll discuss more on what to do if your child refuses contact later in this blog post, but, for now, let’s assume that your child wants to see you. What happens next?
What Is Reasonable Access for Fathers?
The law states that parents are entitled to “reasonable access” to their children. Unfortunately, there is no one-size-fits-all approach to this — every family is unique and what is reasonable for one family will seem extraordinary to another. Some parents see their children every day, while others might see them just once a month. Parents might share responsibilities and alternate weekends or holidays, and some fathers might pick up their children from school. Clearly, it can be difficult to establish exactly what is reasonable access for fathers.
Reaching an Agreement Provision
Many parents manage to reach an agreement on the arrangements for their children. In the majority of cases, children will usually stay with the mother following a separation. An agreement will determine how often the other parent — the father — gets to see their children. Unfortunately, agreeing on this can be difficult — especially if the split wasn’t amicable. One parent may feel that they aren’t getting enough time with their child, which can cause conflict.
What is most important in this case is to put the needs of your child or children before your own and encourage your ex-partner to do the same. Before getting immediately into how often you will have access and who will have the children at weekends, start by laying some basic ground rules and creating a dialogue about how best to look after your children, such as what time they should go to bed, what sort of food they should eat and how often they get treats. Discussing this information will prevent conflict later down the line and assure the mother of your child that you’re willing to compromise and that you have your child’s best interests at heart.
There are many benefits of reaching an agreement. Not only will it be quicker and cheaper than having to resort to more severe legal action, but it will also be less stressful for your children, which should be the main concern.
That said, if you fail to make an agreement on what is reasonable access for you as a father, there is further action you can take.
What Happens if We Can’t Agree?
In some circumstances, you might not be able to agree on what is reasonable access to your children. However, going to court is not necessarily the best solution. If every attempt at communication results in an argument and you find yourselves going around in circles, mediation can help by encouraging parents to set aside their own differences and focus on their children to meet a compromise.
Parents who opt for mediation are likely to see better results than when going through the court process, in part because it’s less stressful and puts the control and power directly in the hands of those who are involved and will be living with the outcome of any decisions made. This form of alternative dispute resolution begins with a Mediation Information and Assessment Meeting (MIAM) and involves working with mediators trained to help you find a mutually beneficial solution. However, it’s crucial to note that mediation will only work if both parties are committed to finding the best solution and willing to compromise.
Mediation is often cheaper than other methods, but be aware that mediators are not qualified to offer legal advice or make legally binding agreements. The agreement you’ll sign in the event of successful mediation — a Memorandum of Understanding, which outlines the terms of your agreement — is more of a statement of goodwill that you and your ex will abide by the terms set out. Mediation doesn’t necessarily eliminate the possibility of going to court. If you and the other parent cannot agree on reasonable access, you will need to take the next step. However, having tried mediation can go a long way to persuading a family court judge that you are putting your children’s best interests first, which is, after all, the only thing they are concerned about.
When reasonable access for fathers has been determined via mediation, some parents choose to have a solicitor look over the agreement. This won’t make the agreement enforceable in a court of law, but it may be used to create a consent order, which is an agreement approved by the family court outlining child arrangements.
If you have made a previous agreement through mediation and one of you fails to keep up their end of the bargain, the Memorandum, while not legally binding, can be used as a form of evidence to demonstrate the terms of the agreement. This may play a part in the court’s decision when determining contact rights from that point onwards.
Child Arrangements Orders
In the majority of cases, a Child Arrangement Order (previously known as a Contact Order), proves unnecessary, as parents can typically agree on what is reasonable access for both father and mother, either between them or with the help of mediation. However, when all else fails, you can apply to the courts. This order falls under the Children’s Act 1989 and outlines the resident parent, who can have contact with the child (in this case, we’re referring to the father, but Child Arrangements Orders may also be sought by grandparents, siblings or extended family) and how long they can have contact for. This is a legally binding agreement, meaning if either party fails to comply, they can be held in contempt of court and face serious legal repercussions.
When issuing a Child Arrangements Order, the court will take a number of factors into consideration, including what the child wants (if they are old enough to make a decision), the needs of the child, whether there’s any risk of harm (if this is the case, contact is likely to be refused) and whether you’re capable of meeting your child’s needs (and satisfying the requirement to provide a duty of care) during contact periods.
Going to court can be costly and time-consuming. You’ll need to hire a family solicitor and pay court fees, but more than this, the ordeal can be incredibly stressful, not only for you and the mother of your child but also for the child themselves. Legal battles can put an enormous strain on parental relationships — no parent wants their child to see them at odds with the other, and no child wants to be at the centre of what is essentially a fight for access. Where children are old enough to make a decision, they may feel that they need to make a choice between either parent, which can significantly impact their wellbeing. The court should only ever be considered as a last resort, and it’s vital to seek advice from an experienced solicitor before taking action. A solicitor may be able to help you reach an agreement without having to go to court or represent you in the event that you do, which can help resolve the case as quickly and with as little strain on the family as possible.
Having Access to Your Children
When you have reasonable access to your child, it’s important to stick to the terms of your agreement and be aware of things you will not be able to do. While you are entitled to decide how to spend time with your child, within reason, it’s important to consider that certain things may upset the other parent, potentially causing tension.
If you’ve previously agreed to spend time with your children as part of your reasonable access, you should do everything in your power to honour it. It can be disappointing for your children if you cancel on them at the last minute and frustrating for the other parent involved if they then need to cancel their own arrangements. Most parents, however, will understand that in certain circumstances, things happen and cancelling is unavoidable. You should never simply fail to collect your children — instead, inform the other parent in a reasonable timeframe and have a discussion as to when you can next have contact.
Constant communication is vital throughout the entire process. As your child grows older, they might naturally want to spend less time with their parents; it’s unreasonable to expect your 16-year old child to continue spending Saturday nights with you, for example. When it comes to reasonable access for fathers, the best agreements are those that are flexible and put the child’s wishes first — not just what is convenient or desired by the parent.
When you have reasonable access rights as a father, you should never take your children out of the country without discussing it with the other parent first. Likewise, your ex should not take your children on holiday without your prior consent, as part of your parental responsibility rights. When you are having contact with your children, you might ask whether you are allowed to pick your child up from school. If the other parent typically collects your child, it could cause an argument if you decide to pick them up without consent. Many schools will also have an agreement with the resident parent (who your child lives with) as to who is allowed to pick the child up, which prevents other family members from taking a child when it has not been cleared with the parent. Of course, allowances can be made, but ensure you discuss this with your ex-partner first and that the school is aware.
When a Child Refuses Contact
As we mentioned earlier, a child may, for whatever reason, decide to refuse contact. While you have reasonable access as a father, you — or a court order — cannot force your child to spend time with you. This can be hurtful, but you shouldn’t give up and stop contact. Just as communication is important between the two parents, so too is communication important with the child. Try to find out why your child doesn’t want to spend time with you — it could simply be that they are older and prefer to spend that pre-arranged time with their friends, or it may be as a result of living with your ex and hearing negative opinions from other close family members.
The child’s feelings are paramount, but the court generally rules in favour of children having contact with both parents. If this is the case and you have a Child Arrangements Order, the resident parent should make all efforts to encourage your child to see you. They could be at risk of being found in contempt if they don’t, but if you decide to take the case to court, this could further strain the relationship you have with your ex and your child. In any case, it’s wise to seek the counsel of an experienced family lawyer well-versed in child law.
Contact with your children when you’re separated can be tricky territory to navigate. If you still have questions about what is reasonable access for fathers, don’t hesitate to get in touch with KMJ Solicitors. Our team of friendly and experienced family lawyers are well-versed in child arrangements and can help. Contact us today for your free consultation.