Specific biological fathers’ rights (paternal authority) no longer exist in the England and Wales jurisdiction, instead family law refers to parental responsibility (P.R.). The stated aims of family law decision making regarding children are to put the welfare of the child above other considerations. However, what is in the best interests of the child as recommended by practitioners in the family law system is often hotly contested by fathers in particular.
When a father has parental responsibility (not always automatic) he has rather basic legal rights and responsibilities but these do not necessarily mean that the father has a right to contact with his child/ren or for them to live with him. However, the mother if the children are living with her primarily is expected to consult with the father for example over education and medical matters that are more than would be considered day to day decisions. Parental responsibility provides for the father to be involved in naming the child and his agreement to changing the name of the child is expected.
If a father does not have parental responsibility automatically then it can be obtained by a parental responsibility agreement or order. The father who does not have parental responsibility is still if he is an active part of the child/ren’s lives, expected to be involved by the mother in education and medical decisions for example. Schools are meant to keep fathers whether they have parental responsibility or not, informed of their child’s progress.
Fathers also have to ensure that their child/ren are supported financially whether they have parental responsibility or not.
Article 8 of the European Convention on Human Rights and Human Rights Act 1988 provides for the ‘Right to Respect for private and family life’, however the England and Wales courts have a wariness of the terminology of rights and Art 8’s practical use in family law is relatively limited.
There is a fathers’ rights movement which seeks to address the grievances that a great many fathers and their families have expressed concern about over the years in the United Kingdom. Some of these grievances are that the present system of of family law lacks a statutory legal presumption of contact and shared parenting; there is a lack of transparency and a structured decision making process in family law; that terminology used by the family courts and other authorities is demeaning towards fathers in particular. That the inherent faults in the family law system often produce poor outcomes for children and the process itself is regularly slow and over bureaucratic plus expensive and time consuming is certain.
The concerns of fathers’ rights groups resonate with many stakeholder groups, policy makers and politicians. Large numbers of men and women believe the law is deeply unfair to fathers following separation. Some judges and lawyers agree that fathers are regularly treated poorly by the system and have called for reform.
The present President of the Family Division, Lord Justice Munby in 2004 called for “sweeping changes to family justice system after ‘shameful’ court failures“. Lord Justice Ward in 2008 stated “The father complains bitterly, passionately and with every justification that the law is sterile, impotent and utterly useless – we have to acknowledge there is a degree of force in what he says“. Little or no effective legislative or procedural change to the family law system has occurred since these statements.
However, over recent years more family court practitioners are becoming aware of the real benefits to children of involving fathers in their care, not simply with the financial responsibilities. If the family courts are approached in the right manner (as the court sees it) and your case is presented in a balanced and reasonable way (as the court sees it), then very often the results for fathers and their children can be good depending on the individual circumstances. Unfortunately because of adversarial legal advice and the lack of knowledge of how the family courts work, many fathers approach the system in a way that lessens their chances for success. It is helpful and often crucial to obtain experienced and knowledgeable information and support before or during any court proceedings.
Surveys have shown, one in three children whose parents separated or divorced over the last 20 years have lost contact permanently with their father. Politicians and some lawyers have acknowledged the system is adversarial and acrimonious with children being used as pawns/bargaining tools by parents. Yet reforms announced so far to address the acknowledged failings in the family law system, appear to be wholly inadequate.