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Successful Child Arrangements Application – Father seeking a shared custody arrangement

By Ashleigh Paige Yarde

Following the breakdown of a family, there are a number of matters to address with care and it is always helpful to seek legal advice.  Our Head of Family Department, Rakhi Singal, was approached by a father seeking an equal shared care arrangement for his child, after separating from his partner.

The client and his ex partner had previously reached an agreement to share care of their child. However, things took a left turn as can often be the case when attempting to effectively co-parent.  Despite the mother agreeing to facilitate contact in line with their arrangement, she would often make alternative plans on the father’s days for contact, sometimes alleging these were prior commitments.  Furthermore, there were prolonged periods of no contact as the mother would allege that the child was not well or did not feel like having contact.  Our client felt at a loss and sought clarity as to what rights he had as the child’s father and sharing care of his child.

Arrangements regarding children  after a separation are often complex and delicate.  They can become messy and also place pressure on the children of the relationship.  We understand the issues that often come with children proceedings and our extensive experience has served our clients in clearly understanding what their position is and what the realistically achievable outcome can be, while helping the parties to put their child’s best interest front and centre.

As in all cases, whenever father’s rights  in child arrangements come into an issue, our team evaluates whether the client indeed has parental responsibility over the child or not, as this is an essential element in helping our father clients achieve meaningful contact with their children.

If you are experiencing any kind of issues with the arrangements around your children, do not delay it. Often enough, the longer the issues are allowed to fester, the more complex they become. Speak to one of our experienced child arrangement solicitors by contacting us on 020 3372 5125 or fill in the form.

What rights does a father have over their child?

If a father was married to their partner at the time of the child’s birth, he will have parental responsibility over the child.  If, after 01 December 2003, parties were not married at the time of the birth but the father is named on the birth certificate, he will again have parental responsibility over that child.

However, it is often the case that neither of these scenarios apply. In such cases, one can apply to the Court to get parental responsibility provided they are connected to the child.

It is important to note, that establishing parental responsibility is essential for child arrangement cases. For applications to the Court in respect of child arrangements, both the mother and father can apply for this – as well as anyone else with parental responsibility.

Parental responsibility, in essence, is what allows you to make decisions for your child and be involved in the child’s life. It is essential to note that both parents have equal parental responsibility, unless otherwise ordered by court. Whether we are talking about resident or non-resident parent, they both have rights and obligations in respect of their child.

Do the children always live with the mother?

It is often thought that after the breakdown of a relationship, the children will always continue to live with the mother, rather than the father.  This is a common misconception and prevalent in cases where the mother may have assumed a more domestic role as opposed to the father.  The Court will have regard to a number of factors when making decisions about children but it is not the Court’s default position for a child to live with the mother.  The Court recognise the importance of a child enjoying a positive relationship with both parents (providing there are no serious safeguarding issues) and will keep this at the forefront.  Parties are also encouraged by Judges to reach agreements wherever possible.  Unfortunately however, there are cases where agreements can be reached between parties but later ignored, causing tension and difficulties in co-parenting.

As can be seen in this particular case, our client had reached an amicable agreement with his ex partner but implementing this soon became a challenge.  Both parties had worked throughout the relationship though the client’s employment was slightly more demanding.

When the client approached our team, he was very concerned that as a father, his voice would not be properly heard by the Court and he only hoped to achieve weekly contact.  Our solicitors’ knowledge and understanding of these issues allowed them to explain to the client that he was well within his rights to seek a shared care arrangement and assured him of the strong case that would be put forward on his behalf.  Emphasis was made on the fact that fathers rights to their children are equal to that of a mother. Our team then explained the litigation process to prepare the client for what to expect. Throughout the process, our client made a number of attempts to settle the matter out of Court but this failed due to the other party’s unreasonable behaviour.

It is important to note that throughout children proceedings, the Court will always prioritise the best interests of the child.  A Judge may decide that it would be in the child’s best interest to live with their mother or their father (with the other parent enjoying contact), or alternatively, with both parents via a shared care arrangement.

During proceedings, the Court will have consideration many aspects when determining such an important issue.  However, there are a number of factors that the Court will always have regard to which is a useful guide in their decision making:

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

The Court must consider the wishes and feelings of the child, taking into account the child’s age and level of understanding in the circumstances.  To do so, the Court will involve CAFCASS or social services to conduct investigations and prepare a report.  In this case, the child was spoken to by Cafcass and was able to describe how she felt about the situation.  This was important as it came to light that the child did in fact look forward to contact and wished to see her father more often however she felt a divided sense of loyalty, which is all too common in these situations.

It was recommended by Cafcass that, having considered a number of factors and, as the child presented very positively in respect to both parents, there was no reason a shared care arrangement could not be in place.

(b) his physical, emotional and educational needs;

The Court will consider who might best provide for the child’s emotional, physical and educational needs. A child’s emotional needs can be more difficult to deal with, and the Court will consider who is best placed to provide for the emotional needs of the child – both short term and long term.  In our case, both parties were able to provide for the needs of the child equally. Our team worked closely with the client to put together compelling evidence of the client’s ability to meet these needs in equal measure as the mother.

(c) the likely effect on him of any change in his circumstances;

The potential impact to the child’s life will be considered by the Court as the Court will often prefer making an order that causes the least disruption to a child’s life.  This will however be balanced by the other factors to be considered.

As parties had previously enjoyed a routine that the child was used to, our team of specialist child lawyers used that to show there would be no detrimental impact to the child if the father was awarded an order for shared care.  Furthermore, our firm put forward a clear case as to how the child’s life may actually improve if a shared care arrangement was in place, which greatly aided the client’s case.

(d) his age, sex, background and any characteristics of his which the court considers relevant;

The Court will consider specific issues such as religion, race and culture when making a decision about a child.

(e) any harm which he has suffered or is at risk of suffering;

The Court will look at the risk of harm to the child concerned and assess the immediate and long term risk of harm to the child. Harm is defined as ‘‘ill treatment or the impairment of health or development”.  The Court will weigh up the potential risk of harm to the child in future and make an order as appropriate in the circumstances. An order may contain protective measures which are aimed at safeguarding the child.

In our case, there were no safeguarding issues and neither party had made allegations of this nature.  Our client was however concerned that if there was no shared care arrangement, his child would suffer emotional harm due to a lacking presence of a constant father figure.  Our firm put forward a case to demonstrate that, owing to the mother’s past behaviour concerning contact, contact would not be sufficient to maintain a close emotional bond with the child and this could potentially lead to a parental alienation issue.  Concerns of this nature should be made clear to the Court from the outset of proceedings to ensure this is raised and recorded as an issue to be addressed by the Court.

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

The Court will consider how able each parent is to care for the child and to meet their particular needs. This will of course depend on the facts and circumstance of each case.  In our case, the father was seeking an equal shared care arrangement and intended to adjust his work commitments facilitate this.

Our team advised the client on gathering relevant evidence to show the work adjustments he was able to make in order to share equal care of his child.  With this evidence, our team of child solicitors painted a clear picture to the Court as to how and why the arrangement would work, encouraging the Court to see the practicality and easiness of the proposed shared care arrangement.

(g) the range of powers available to the court under this Act in the proceedings in question.

The Court must weigh up all the factors under the welfare checklist and consider all available orders within their discretion. The Court will then make the best order available that is in the best interests of the child.

The outcome

In this case, the Court found that it would be in the child’s best interests for there to be an equal shared care arrangement.  Our client was extremely pleased with the outcome that far exceeded what he had hoped for. He was thankful he had sought legal advice to clarify his position before entering into complex litigation with lesser aim than what he had ultimately achieved. Our client is now enjoying a strong, meaningful relationship with his child, which was only possible after fully understanding his rights as a father.

To speak to our team of specialist child lawyers please call 020 3372 5125 or fill in our online form.

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