Published on December 16, 2022

There is no automatic presumption that the children would stay with their mother if an unmarried couple separate. The focus should be on looking at the arrangements which best suit the children and always taking decisions which are in the children’s best interests.

Whether a father does or does not have parental responsibility can impact on the practical arrangements for a child’s care. This does not, however, mean that the father should be excluded from the child’s life.

The court has recently introduced a new provision which means that if they are asked to decide the arrangements for a child, the court shall presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

What can sometimes complicate matters is if the mother and the father have a different legal status in relation to the children. A mother always has parental responsibility for her child or children. This is not automatic for a father. Whether a father does or does not have parental responsibility can impact on the practical arrangements for a child’s care. This does not, however, mean that the father should be excluded from the child’s life.

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 their property.

This includes all fundamental decisions as to what the child does presently and in the future; for example, where the child goes to school, what medical treatment the child can or cannot receive and what religion the child should follow.

The more significant a decision regarding a child’s welfare, the more cooperation and discussion there should be between the adults who have PR.

If a father does not have PR then this could make it more difficult for him to ensure the child or children attend medical appointments or are enrolled at school, and he may find that he has to obtain the mother’s authority.

How Do I Know If I Have PR?

All mothers have PR. All fathers who are married to the mother have PR even if their name is not on the birth certificate. Unmarried fathers with children whose birth was registered after 1 December 2003 and whose name appears on the birth certificate have PR. Those unmarried fathers who are not on the birth certificate or whose children had their births registered before 1 December 2003, do not have PR.

How Can I Acquire PR?

All is not lost for a father who does not have the automatic right to PR. It can be obtained in one of the following ways:

  • Entering into a Parental Responsibility Agreement with the mother. The agreement must be in a prescribed form, signed and witnessed by a court official. This is the most straight forward option, but it does require co-operation from the child’s mother.
  • Re-registering the child’s birth and having the father’s name added. Again, an element of cooperation from the child’s mother would be required.
  • Applying to the court for PR. This may be a stand alone application or it may be made as part of an application for a child arrangements order (see here for more information). When making a Parental Responsibility Order the court will look at the father’s degree of commitment to the child, the state of the father’s current relationship with the child and his reasons for making the application.
  • A Child Arrangements Order providing that a child lives with their father (for any amount of time) also confers PR. Any decision taken by the court about where a child lives has to have regard to the child’s welfare.
  • Being appointed as a guardian either by the mother or the court, although in these cases the father will only assume PR on the mother’s death.
  • By marrying the mother. This grants PR to the father, even if the child was born before they got married.

Summary

The issues relating to PR and the rights of a parent can be complex. The law and court practice procedure can be difficult and it would be advised that where a person is confused about the rights they have as a parent they should seek family law advice from a solicitor.

There are no fixed presumptions as to who will care for a child or children once a relationship breaks down.  In many cases, it is about dealing with the practicalities first – for example, one parent may mainly stay at home to provide care whilst the other parent works long hours, possibly away for the family home.

Postscript. Issues arising out of separation and maybe not seeing your children as much as you would like to can often prove stressful for the couple and other family members. This article written by Dylan Watkins GP offers a useful overview for those who may be struggling. Signposting to additional support and relevant organisations can be found in this link

James Maguire is a contributor to ‘Separating With Children 101’, 3rd edition (Bath Publishing, 2023).

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The Early Days Of Separation

Humans are designed to cope with many onslaughts, but change continues to prove extremely challenging. How you manage the early days of separation or divorce has the potential to set the tone for the rest of the process.

When couples separate, they are often thrown into a period of uncertainty. Identities are changing from couple to single, from mum and dad together as a family unit to mum with children and dad with children. Depending on the circumstances and who decides to leave the family home, there are many questions that arise during the early days of separation. “Will we have to sell our home?” “I haven’t worked since we had children – how will we manage financially?” “What will our friends and family think?” “How much will divorce cost?”
“Will I cope on my own?” There seems to be so much to sort out both practically and emotionally and it comes at a time when at least one of you will be ‘all over the place’ emotionally due to the loss you are experiencing. This can make decision-making seem impossible. Who wants to agree the practicalities of legal issues and more importantly organise the children when they are devastated, angry and confused by loss? It can turn otherwise rational, clear-thinking mums and dads into what appears to be belligerent, stubborn, unreasonable people.

Take Your Time!

In those early days of separation or divorce, take your time if you can. Seek support from friends, family and professionals. Try not to make any big decisions too quickly.
Bear in mind that communication problems with your ex and all the pressures on family life you are now experiencing, like for many separating couples, will get better with time. It’s important to recognise that you and your ex will more than likely be in very different emotional places at the moment; different stress levels and anxieties will be making communication difficult. Taking the time to sometimes do nothing, to not react, give things a day or two, can prove very useful techniques.
What you have to remember is that if you have children, your ex is always going to be part of your life. That can be hard to take on board when you are feeling hurt and angry. If you can find a way to communicate with each other that focuses on the children, you will all benefit in the years to come.

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