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Andrew Caldicott is a family lawyer and Solicitor Advocate with leading Worcestershire and West Midlands’ law firm Harrison Clark LLP. He takes a look at the parental rights of fathers in a relationship breakdown.

“Even in this modern age, I am sure like me, you will often hear it said that “it is still a man’s world”. Certainly over the past few decades, there has been a wealth of legislation aimed at tackling sexual discrimination and balancing up the scales.

“When it comes to parenting though, it is arguable that the Law treats fathers very differently and for those of us who have practised Children’s Law over many years, it is alarming just how many men are unaware of their rights or obligations in respect of their children.

“The Children Act was brought into force in 1989 and for the first time in legal history, attempted to properly define what parenting involved. It created the concept of parental responsibility and that 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/her property”.

“No further guidance was given save that later on in the Act, references made to “bringing the child up, caring for them and making decisions about them”.

“Practical examples of using parental responsibility are making decisions about a child’s name, religion, education or consenting to medical treatment.

“The Children Act then went on to say who had parental responsibility. Basically all mothers automatically have it. All fathers do not. If a mother and father are married to each other at the time the child is born then they both automatically have parental responsibility and the idea in legal terms is that they will share the responsibility of making decisions about the child’s upbringing. Of course these days, many parents have children outside marriage and many fathers are ignorant of the fact that they will not automatically have such parental responsibility.

“Under the Children Act, a father can still go on to obtain parental responsibility in a number of different ways –

1. Firstly (and this has only been in force since the 1 December 2003) if the father is registered as the child’s father on the child’s Birth Certificate.

2. Secondly, the mother and father can enter into what is known as a “Parental Responsibility Agreement”.

3. Thirdly, the father can apply to the Court for an Order giving him parental responsibility if no agreement has been possible.

4. If the father obtains an Order confirming the child is to live with him then the Court will normally at the same time make an Order giving him parental responsibility for the child as well. Also if the father does go on to marry the child’s mother, then he can acquire parental responsibility that way too.

“There has never been any detailed research on the point but it would not surprise me if there are a number of fathers who do not have parental responsibility for their children. Even where that is the case, it does not mean that they are not still liable to provide support for the child or that they do not have any right to see the child. It can however leave them quite seriously disadvantaged in a number of other ways and as soon as father’s discover that they lack parental responsibility, the vast majority of them are then anxious to obtain it as soon as possible. If the mother and father remain living together, there is normally no problem at all with sorting it out by agreement. The problems of course often arise where the parents have split up after the child’s birth and for whatever reason, the mother will not agree.

“Sadly it is quite common place for parents to split up even before the child is born. A child’s birth has to be registered within 42 days of birth and therefore often the father will not be part of the registration process and looses out on the chance to require parental responsibility in that way.

“The Law treats the mother and father differently in other respects too. There has been a well established principle for many years now that a woman has a right to maternity leave. It is only a fairly recent phenomenon though that men are allowed paternity leave too. If you are a father to be or you will be responsible with the mother for bringing up the child, the father has the right to paid paternity leave, provided you meet certain conditions. Those conditions include being an employee with a contract of employment, being the biological father of the child or the mother’s husband or partner, having been with your employer for at least 26 weeks by the end of the 15th week before the beginning of the week when the baby is due and that you will fully involved with the child’s upbringing and then taking the time off to support the mother or care for the baby.

“Even then, you can only take either 1 or 2 weeks leave and if it is to be 2 weeks it must be taken altogether at the same time.

“There are many other conditions are requirements too including having to notify your employers at least 15 weeks before when the baby is due and at that stage, you have to say whether you want 1 or 2 weeks leave and when you want the leave to start. The amount of statutory paternity pays is currently £112.75 per week or 90% of your average weekly earnings if this is lower.

“The topic of legal rights is endless but hopefully you will see that even when you are in a loving and ongoing relationship, there are still potential complications when you decide to become a parent and it would pay for most men to take some brief advice before they become a father. We often find in practice that if parents think about these issues well in advance and address them early on, it can save a lot of difficulties and confusion later on.”

For further information on this article, please contact Andrew Caldicott at Harrison Clark LLP on Tel: 01905 612001. Alternatively you can speak to Angela Baker at Marketing IQ on Tel: 01905 359475 or e-mail: angela.baker@marketing-iq.co.uk




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