Prior to 4 May 2006, unmarried fathers did not automatically acquire what are referred to as “parental rights and responsibilities”. Mothers and married fathers automatically acquired parental rights and responsibilities, but unmarried fathers were treated differently. That situation changed on 4 May 2006 and, since that time, an unmarried father has acquired parental rights and responsibilities if he is named on the child’s birth certificate.
Parental rights and responsibilities are important. A parent with parental rights over a child has the ability to control, direct and guide the child in a manner appropriate to his or her age and development.This includes a right to decide and consent to medical treatments and how the child should be educated.
At the same time, there are responsibilities in respect of the child. There is a duty to safeguard and promote the child’s wellbeing and welfare and provide guidance to the child. There is a duty to care for and protect the child.
If you seek parental rights and responsibilities in respect of a child born before May 2006 and you are an unmarried father, then there are only two ways you can obtain such rights. The first way is by entering into an agreement with the child’s mother. If such an agreement is not forthcoming, then you would have to apply for a court order. There is no guarantee that such a court order would be granted, as the court makes decisions with regard to the best interests of the child - not based on the best interests of the unmarried father. The court will consider whether it is necessary for the father to have rights and responsibilities in the particular circumstances of each case. The court will often consider the level of commitment previously shown by the father to the child, and may also look at the extent of the attachment between parent and child. The reason or reasons why the mother has refused to consent to the father obtaining parental rights may also be of relevance. Furthermore, depending on the child’s age, his or her views may be taken into account before the court makes any decision.
This may be seen as representing unfairness to unmarried fathers who have children born prior to 4 May 2006.The question has to be asked why it is appropriate for married fathers to obtain parental rights and responsibilities automatically and, indeed, why unmarried fathers with children born after 4 May 2006 should have these, but not unmarried fathers of children born before that date. It appears unsatisfactory that such a father might have to apply to the court for parental rights and responsibilities and then satisfy the tests above. There are many situations where an unmarried father has perhaps been deprived of contact through no fault of his own and is then “penalised” when he applies to the court for parental rights and responsibilities in respect of the child, on the basis that there is little or no attachment between the parent and the child. At the same time, however, other fathers or, indeed, mothers who have had little or no contact with their child for exactly the same reasons will retain their parental rights and responsibilities in most situations.
A further question has to be considered. In situations where both the mother and father have parental rights and responsibilities in respect of the child, is it appropriate that the “absent” parent is not afforded contact for half of the school summer holiday period and on Christmas Day, on many occasions? Such matters are determined by the court in the best interests of the child. However, if parental rights include the right to have your child living with you, or at least to maintain direct contact with him or her on a regular basis, then why should this be the case? If a shared parenting arrangement operates whereby the child spends regular periods at both parents’ homes, then would it not be appropriate for the child to spend half of all holiday periods with each parent, where practical, and indeed a significant period on Christmas Day each year?
As indicated, such matters are decided on the basis of the best interests of the child, but the situation still occurs whereby many courts require to be persuaded that it is in the best interests of the child to stay overnight with the absent parent on Christmas Eve, for example. A number of Sheriffs also appear to continue to take the view that the child should spend Christmas Day with the resident parent if there is any dispute about that, and the absent parent should exercise contact on Boxing Day. Surely this does not reflect the situation where both parents have equal parental rights and responsibilities, certainly where both parents have significant direct contact with the child?
For more information about children, divorce and family law in general, please contact Charles Brown on 0141 221 1919 or This email address is being protected from spambots. You need JavaScript enabled to view it. .
