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An important change for unmarried couples in England and Wales (Nov 2003)
Note: This does not apply to births registered before 1 December 2003.
the right to be responsible for your child
• The law changed on the 1st December 2003 to make it easier for unmarried fathers to get equal parental responsibility: To do this both parents must register the birth of your baby together.
• Parental responsibility for your child gives you important legal rights as well as responsibilities. Without it, you don't have any right to be involved in decisions such as where they live, their education, religion or medical treatment. With parental responsibility, you are treated in law as the child's parent, and you take equal responsibility for bringing them up.
• Unlike mothers and married fathers, if you are not married to your baby's mother you do not automatically have parental responsibility for them.
• Before this change, you could only gain parental responsibility by later marrying the child's mother, signing an official agreement with the mother or getting a court order. You can still get responsibility in these ways - you might want to think about this if you have other children.
Fathers Together recommends that unmarried fathers seek to acquire Parental Responsibility (PR) asap if they do not already have it. The father will then have virtually the same rights in bringing up the child as enjoyed by married fathers. Married parents automatically have PR, even if divorced. In 1994 32% of children in England alone were born to parents who were not married to each other at the time of birth. PR confers equal status on both parents. Schools, doctors, hospitals or clergymen should therefore continue to regard the non-residential parent as a parent and deal with him on an equal footing with the residential parent. If you are married both you and your spouse will automatically have Parental Responsibility. You both share that responsibility until your children reach the age of 18 (unless ended by a Court Order). If you are an unmarried father you do not have Parental Responsibility automatically. However, you can obtain PR by registering a legally binding written agreement, subject to the mother's consent. If the mother refuses her consent then an unmarried father can seek Parental Responsibility by making an application to the Court.
Parental Responsibility is defined in the Children Act 1989 as:
"All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property."
Without PR unmarried fathers face many problems including the following:
• you may be excluded as respondent in court applications which affect your child
e.g. contact by relatives, care applications by a Local Authority, adoption;
• your child's surname may be changed without your consent;
• appointment of a guardian in the event of the death of the parents.
How to obtain Parental Responsibility
The father can obtain PR by:-
• Registering the birth together, with the mother (only applies to births registered after 1 December 2003);
• Parental Responsibility Agreemant which is a legal document which the mother must sign. It must be witnessed and filed with the Principal Registry (0207 947 6936);
• Parental Responsibility Order (PRO). The father can apply to the court for an order if the mother refuses to make a PR agreement;
• Residence Order. This confers Parental Responsibility automatically;
• Marriage to the child's mother.
Parental Responsibility Orders
PROs originate under Section 4 of the Children Act 1989 The 'Paramountcy Principle' applies - i.e. the welfare of the child is paramount in considering whether to award a PRO. The criteria which a father must meet in order to be given PR are not stipulated, however, over the past few years a substantial body of case law has developed which addresses this matter.The following criteria may be considered when an application for a PRO goes before the court:
The degree of commitment which the father has shown towards the child e.g.
• financial support
• pursuing contact
• keeping arrangements
• present at birth
• having ones name on the birth certificate
• involvement in child's education
• the degree of attachment existing between the father and the child (naturally a father of a very young child may have had little opportunity to develop this)
• the reasons for the father's application (to weed out applications made solely to be obstructive or disruptive)
What if applying for a Parental Responsibility Order is unsuccessful?
It is very possible that a Family Proceedings Court or even a County Court may refuse you a PRO and on unreasonable grounds. Unfortunately, no matter how great counsel is it will make little or no difference if you meet an obstinate bench or judge.If this happens stand firm and be prepared to appeal the refusal. You will more then likely be successful.
Lord Justice Balcombe stated: "The purpose of a PRO is to give the unmarried father a 'locus standi' in the child's life by conferring on him the rights which would have been automatically his by right had he been married to the mother at the time of the child's birth.
Making an Application.
The application is made on what is known as a C1 form and is very straightforward. This is just a standard form which is used to start your application and later you will be given the opportunity to argue your case in a full written statement over many pages.
Mistakes you can make in this section:
• to write too much (leave it for your statement)
• to give a valid reason, but not have the space to qualify it in this small box, and therefore leave it open to misinterpretation, perhaps at the hearing
• in trying to list as many reasons as possible you may put in something negative which can be magnified by the other side to imply Parental Responsibility would not be in your child's best interest.
Some suggestions:
I am making this application because: I believe that our son/daughter would benefit from having two parents with Parental Responsibility the same as any child of divorced parents. Our child should not be disadvantaged because his/her mother and I were not married.
I am making this application because: His/her mother has refused to consider making a Parental Responsibility agreement and I believe that our son/daughter would benefit from having two parents with Parental Responsibility the same as any child of divorced parents. Our child should not be disadvantaged because his/her mother and I were not married.
I am making this application because: It would be better for our son/daughter if I had Parental Responsibility since it would facilitate my support in everyday situations and also since it would allow me to act promptly as may be required in a contingency.
Discharging Parental Responsibility
To exercise Parental Responsibility you must on occasions exercise your parental rights. Unless institutions and individuals allow you rights as a parent you may be prevented from undertaking the responsibilities required of you as a parent.
Where more than one person has Parental Responsibility for a child, each of them may act alone and without the other in meeting that responsibility. A parent with PR is entitled by law to take any manner of decisions relating to the child which is not expressly prohibited by a court order. For example he would be able to agree surgery for his child even though he knew that the residential mother opposed it, or could legitimately enrol the child in a new school, register with a new doctor or take the child for religious worship contrary to the mother's wishes.
Some of these actions would be futile gestures if the residential parent simply carried on as before, and might possible indicate that PR was unsuitable in this instance. The mother could stop such acts by approaching the court for a specific issue or prohibited steps order. The mother or the child his/herself (with leave of the court) may in any event apply that a PRO be brought to an end.
(Info from Families need Fathers)
"We continuously receive letters and emails about former partners and ex-wives refusing to allow fathers contact with their child(ren).
This is sometimes done to hide a new relationship or as a tactic in financial bargaining. It is also done to control the father emotionally as after most messy break ups, their is often no reason at all for both parties to remain in contact, except for the sake of the their chidren.
In some cases it is done purely out of malice, with one parent using the children to hurt their former partner. Where this occurs it is called Contact Denial and it can happen at any time and in many cases even after legal intervention. It is crucial that Contact Denial is addressed at the earliest opportunity. If this happens a letter should be sent to the mother immediately requesting that contact be re-instated, with a warning that the alternative will be legal action.
Contact is the due right of every child and any right of contact is always subject to the welfare of the child. The non-residential parent can apply under Section 8 of the Children Act for a contact order which is:
"An order requiring the person with whom the child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other."
Types of contact:
Interim Contact
The court process can be extremely slow and in some cases can take several months before a hearing. It may therefore be advisable to apply for what is known as 'interim contact'. This type of contact arrangement is usually on a temporary basis until the matter is settled at a full court hearing.
Direct Contact
This involves the child being together with the parent. This may be either visiting or staying.
Visiting Contact
This happens at the address where the father is living and may range from the former domestic residence, a bedsit, the grandparents home or even a bed and breakfast accommodation so long as it is safe and secure.
Staying Contact
The child is allowed to stay overnight with the non-resident parent. There is a 'tariff' set by the court welfare officers as to the maximum amount of time that a child ought to stay away but this can be disputed.
Defined Contact
Where the schedule of contact is determined by the court.
Reasonable Contact
Where the parties agree the level of contact. This however can become very frustrating as what one parent deems 'reasonable' may be completely different to the other.
Supervised Contact
This may take place at a contact centre, where volunteer staff are present (or nearby) during contact. The surroundings are often institutional but there is always the hope that it is a temporary arrangement. Supervised contact can also include contact at any place specified by the mother, supervised by herself or her relatives.
Indirect Contact
This is where no direct contact is permitted and it is necessary to use other methods such as sending letters, postcards, gifts or exchanging telephone calls etc.
When parents divorce or seperate, the divorce decree will specify with whom the divorcing couple's children will live and also the circumstances under which the other parent will visit with the children. Parents are often able to work out these arrangements between themselves, either voluntarily or with the assistance of their solicitors or a mediator. However, when they are unable to reach a decision, or when unmarried parents are unable to agree on who will have custody of their child, the court will often intervene and make a decision based on what they deem to be in the child's best interests.
Physical and Legal Custody
In most situations, physical custody is awarded to one parent with whom the child will live most of the time. Often, however, the custodial parent shares "legal custody" of the child with the non-custodial parent. "Legal custody" includes the right to make decisions about the child's education, religion, health care, and other important concerns.
Joint Custody
A Joint-custody arrangement is where in the child spends an approximately equal amount of time with both parents. Proponents of this arrangement say it lessens the feeling of loss that a child may experience in a divorce, however, some critics say that it is best for the child to have one home base, with visitation allowed to the "non-custodial" parent. Joint custody requires a great deal of cooperation between the parents and courts are reluctant to order joint custody unless both parents are in agreement and can demonstrate the ability to make joint decisions and cooperate for the child's sake.
Split Custody
Split custody is another option open to Parents., This is when one parent has custody of one or more of the parties' children, and the other parent has custody of the other(s).
Unmarried Parents
If the child's parents are unmarried, most Courts require that the mother be awarded sole physical custody unless the father takes action to be awarded custody. An unwed father often cannot win custody over a mother who is a good parent, but he will usually take priority over other relatives, foster parents, or prospective adoptive parents.
Factors to Consider in Custody Decisions
The courts consider various factors when deciding which Parent will have custody of the chid. In all cases the child's best interests is the overriding consideration, although at times that can be very hard to determine. The main factor is often which parent has been the child's "primary caretaker", however if the children are old enough, the courts will also take their preference into account in making a custody decision.
The "best interest" standard does vary but some factors are common and include;
• The Wishes of the child (if old enough to capably express a reasonable preference);
• The Mental and physical health of the parents;
• Religion.
• Culture
• The need for continuation of stable home environment;
• Opportunity for interaction with members of extended family of either parent;
• Interaction and interrelationship with other members of household;
• A school and community adjustment;
• The sex and age of the child;
• Parental use of excessive discipline or emotional abuse.
• Evidence of parental drug, alcohol or sex abuse. In addition to the above factors, some family courts allow a preference for the parent who can demonstrate that he or she was a child's primary caretaker during the course of the marriage. The "primary caretaker" factor becomes important in custody cases as child psychologists have stressed the importance of the bond between a child and his or her primary caretaker. This emotional bond is said to be important to the child's successful passage through his or her developmental stages, and psychologists strongly encourage the continuation of the "primary caretaker"-child relationship after divorce, as being vital to the child's psychological stability.
When determining which parent has been the primary caretaker, courts focus on direct care-taking responsibilities, such as:
• Bathing, grooming, and dressing;
• Meal planning and preparation;
• Purchasing clothes and laundry responsibilities;
• Health care arrangements;
• Fostering participation in extracurricular activities; and
• Teaching of reading, writing, and math skills.
Funilly enougth in the past, the primary caretaker preference seemed just another way to award custody to mothers but as more and more men share parenting responsibilities, this preference does not necessarily favor mothers.
If it is apparent that both parents have shared equally the parenting responsibilities, courts will once again revert back to the" in the best interest" standard in determining custody. |
The role of the CSA is to make sure that parents who live apart from their children contribute financially to their upkeep by paying child maintenance. For many years Fathers have protested and as a result of this there has been a substantial change in Child Maintenance payments and how they are calculated by the Child Support Agency (CSA).
The CSA has had its fair share of problems - and hasn't been efficient or successful enough at collecting child maintenance. To remedy this, and to provide a better service to parents, the Government plans to set up a new organisation called the Child Maintenance and Enforcement Commission.
The Government has published the Child Maintenance White Paper. A new system of child maintenance'. This White Paper sets out the Government's proposals to establish a new and radically different organisation to administer child maintenance.
This will be underpinned by an entirely new approach that encourages parents to take responsibility for supporting their children financially, but is backed up by a tough enforcement regime for cases where this does not happen. Eventually, this new organisation will be set up to replace the Child Support Agency. It will have responsibility for all aspects of the new child maintenance system including providing parents with information and guidance to help them make their own arrangements and the calculation, collection and enforcement of maintenance.
How Child Maintenance is calculated
Information is provided by both parents to decide if someone has to pay child maintenance and to work out the amount of maintenance that should be paid. Information from other sources, including the non-resident parent’s employer or HM Revenue & Customs (HMRC) – which used to be the Inland Revenue may also be used if necessary.
Child maintenance is calculated by applying one of four rates to the non-resident parent’s income. Income is earnings, money from an occupational or personal pension, and tax credits. The amount of income left after things like income tax, National Insurance and any money paid into a pension scheme have been taken off is used to calculate the amount to be paid. This does not apply if the pension is set up to pay off a mortgage, when only 75% of the money paid into the pension scheme is taken away from the income.
The four rates applied to the non-resident parent’s income are:
• basic rate (if they have an income of £200 a week or more)
• reduced rate (if they have an income of more than £100 and less than £200 a week)
• flat rate (if they have an income of between £5 and £100 a week)
• nil rate (if they have an income of less than £5 a week).
The child maintenance adjusted based on:
• how many other children are living with the non-resident parent, who they or their partner get Child Benefit for (a regular payment made to anyone bringing up children)
• how many children the non-resident parent needs to pay child maintenance for
• whether the child stays with the non-resident parent at least one night each week.
The calculation will not take into account the parent with care's income, or the income of either parent's current partner and also excludes housing costs,travel-to-work costs and other personal out goings.
The new system is far more generous to non-resident parents who share the care of their child with their former partner than under the old system.
This is because any nights spent with that parent reduce the maintenance paid to the parent with care.
Eg; a non-resident parent with one child who paid 15% of net income of £300 a week in maintenance payments would, under the new system, pay £45 a week to the parent in care. If the non-resident parent had the child for two nights a week, payments would fall to £32 a week and so on.
The maintenance calculation also takes into account any children under 16 in a new household. This is considered as a second fmily.
Workers earning £300 a week net, living with a new partner and three children, would see their maintenance payments reduced to £33.75 a week.
You may also want to consider a Private Arrangement. A private arrangement is where you and your ex-partner decide between yourselves how much child maintenance should be paid. This means you don’t need to involve other people in the decision.
What are the benefits of a private arrangement?
• A private arrangement can help keep the goodwill and trust between parents.
• You are both in control of the arrangement and can keep your decisions independent and private.
• It can be more straightforward and quicker than involving solicitors, mediators, the courts or the CSA.
• It does not cost anything to set up.
• You can apply to make your agreement legally enforceable or to use our services at any time.
What are the disadvantages?
• There is no guarantee that your ex-partner will keep to the agreement
• Even if it is written down, a private agreement isn’t generally legally enforceable.
• Changes in your and your ex-partner’s lives can be upsetting to both you and your children. This may mean that you find it difficult to continue with the arrangements you’ve made.
A private agreement isn't suitable for all parents and If you need help coming to an agreement, you can use a mediator or solicitor. If you want to make an agreement legally binding you should consider a consent order.
CAFCASS (The Children and Family Court Advisory and Support Service) looks after the interests of children who are caught up or involved in family proceedings. It was formed on 1 April 2001 under the provisions of the Criminal Justice and Court Services Act and is accountable to Parliament through the Department for Education and Skills. CAFCASS is independent of the courts, social services, education and health authorities and all similar agencies.It works together with children and their families, and then liasons with the courts on what it considers to be in the children's best interests. CAFCASS only works in the family courts. Examples of matters that may be taken to family courts include:
• when parents who are separating or divorcing can't agree on arrangements for their children
• an adoption application
• when children are subject to an application for care or supervision proceedings by Social Services
Why was CAFCASS set up?
CAFCASS was formed to unite the family court services previously provided by the Family Court Welfare Service, the Guardian ad Litem Service and the Children’s Division of the Official Solicitor’s Office. The aim was to create a unified service in order to fulfil these roles more effectively and build from the strengths of the individual services and their officers.
Who works for CAFCASS?
CAFCASS provides many diferent functions which are dependent on the particulars of the individual case and exactly what the court requests the CAFCASS officers to do. There are four main roles for CAFCASS Officers:
• Children and Family Reporters. They become involved when divorcing or separating parents are unable to reach agreement about arrangements for their children.
• Children’s Guardians. They represent the interests of a child during cases in which social services have become involved and in contested adoptions.
• Reporting Officers. They ensure parents are clear and understand what an adoption means for both them and their child and whether or not they consent to it.
• Guardians ad Litem They are occasionally appointed by the court in cases when parents who are separating or divorcing have not been able to reach agreement. However, this only happens if there is some particular difficulty in the case. The role of the Guardian ad Litem is to provide separate representation of the rights and interests of the child.
CAFCASS also has its own Legal Service and Special Casework Department that is made up of solicitors and caseworkers. Should a case go to a High Court or a county court they are principally responsible for representing children and provide legal advice on matters of family law to staff throughout CAFCASS.
Where does CAFCASS operate?
CAFCASS operates across ten regional areas in England. These are: Eastern; East Midlands; Greater London; North East; North West; South; South East; South West; West Midlands and Yorkshire and Humberside.
How does CAFCASS work with the courts?
CAFCASS advises the courts so the decisions they make are in the best interest of children. CAFCASS Officers in a case write reports for the court explaining the enquiries they have made and say what they think should happen.
How does CAFCASS know what is in the best interests of children?
CAFCASS works with children and their families and making sure the voices of the children are heard and understood. CAFCASS Officers are qualified in social work and are experienced in working with children and families.
On 5 October 1998 new rules on UK passports for children came into force.
It is now a requirement that all children under 16, ( though existing passports which include children will remain valid until the expiry date) have separate passports.
The new child passports are valid for five years and cost UK25.00 by post or UK60.00 for personal applications. You can contact the passport office on 0870 521 0410 for more information.
Any person who has Parental Responsibility for a child can apply for the passport, but must give details of all other people who have PR (who may object to a passport being issued). Under section 37 of the Family Law Act 1986 a court can order the surrender of any passport in which a child appears where an order restricting the removal of the child (e.g. Residence Order) has been made. If you have Parental Responsibility and there are no restricting orders in force then you have equal legal status with the other parent and can in theory take your child anywhere you like on holiday.
However, Under the Child Abduction Act 1984,it is an offence for any person to take a child out of the UK without "appropriate consent". If you have a Residence Order in your favour you can take the child out of the UK for up to one month without seeking consent from anyone (though anyone else can apply for a Prohibited Steps Order to stop you if they know of your intentions). If there is a Residence Order in favour of another person then you cannot remove the child from the UK unless you have written consent from every other person who has PR or have obtained leave of the court.
Before the implementation of the Children Act 1989 on 14th October 1991, under section 41 of the Matrimonial Causes Act 1973 it was routinely stated on the 'certificate of satisfaction for the arrangements for the children' that no one should take any action without the authority of the court which would result in the children being known by another name. For anyone divorced before this date their children are automatically protected and anyone taking action against this prohibition would be in contempt of court.
The child's surname is also legally protected where a Residence Order is in place.
Section 13(1)(a) of the Childrens Act 1989 states that:
"Where a residence order is in force with respect to a child, no person may cause the child to be known by a new surname without the written consent of every person who has parental responsibility for the child or the leave of the court".
If the child's surname is not protected by a residence order or by a 'certificate of satisfaction' then an application for a Prohibited Steps Order may be necessary.
Umarried Fathers
If their is no residence order in force an unmarried father may apply for a Specific Issue Order to specify by which surname a child should be known. Fathers with Parental Responsibility have a right to be consulted over any change of name by deed poll.
Unmarried Fathers and the Birth Certificate
The Registration of Births and Deaths Act 1953 governs the registration of names. Where the father and the mother were not married it is the duty of the mother to register the childs birth within 42 days
Child's Surname:
Section 9(3)(b) states that: "The surname to be entered shall be the surname by which at the date of registration of the birth it is intended that the child shall be known".
Child's Father Registered:
Section 10(1) prohibits the Registrar from entering the father's name on the birth certificate without the co-operation and consent of the mother unless there is a court order in force. Section 10(a) allows re-registration to show the father on the certificate, but only with the consent and co-operation of the mother.
Non-resident parents often complain that schools and doctors refuse to give them any information about their children, even though they have Parental Responsibility by marriage or through a court order.
The Court of Appeal ruled in Re H (A Minor) (Shared Residence) 1 FLR [1994] 717 that:
"Since the father had a parental responsibility order, he was entitled to receive full comprehensive reports from the boy's school and full medical details from his general practitioner."
Cazalet J said in his judgement that:
"Whatever the situation may be thought to be by those concerned in meeting the father's requests, I point out that the father, having obtained a parental responsibility order pursuant to s 3(1) of the Children Act 1989 is entitled to all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child. The father is accordingly entitled to the same rights as the mother in regard to the receipt of any reports or documents which, for example, the school or doctor may hold."
The above ruling seems clear but is very contradictory and many non-resident parents still face difficulties in attempting to obtain any information about their children's education or health from schools and doctors. When seeking access to information from doctors and headteachers it is better to appeal to their better nature and often more productive to use persuasion and charm then any form of direct confrontation.
If the child has been re-registered with an unknown family doctor then the Area Health Authority will provide details to anyone with Parental Responsibility if a written request is made athough you may find it necerssary to provide evidence of PR). The parent must then approach the doctor directly.
The Access to Health Records Act 1990 requires 'the holder of a health record' - a doctor, dentist or other health professional - to provide access to health records in response to a request by the patient. Where the patient is over 16, s/he alone is entitled to access, but where the patient is a child under 16 an application can be made by any person with Parental Responsibility.
The ruling by Cazalet J in Re H (A Minor) (Shared Residence) 1 FLR [1994] 717 only says that "the father is accordingly entitled to the same rights as the mother", which consist in relation to medical matters of the right to ask the doctor for information. Therefore, this means Doctors are the sole arbiters of whether allowing access to records is in the 'best interests' of any child that they treat and may withhold information from parents as they see fit.
The ruling in Re H (A Minor) (Shared Residence) 1 FLR [1994] 717 should ensure that the family doctor or any hospital doctor treating the child will see anyone with Parental Responsibility and discuss the child's health. Where the child is old enough to be considered Gillick Competent, his or her consent may be required.
Gillick Competence
The rights of parents in relation to medical matters concerning their children are subject to the ruling of the House of Lords in the case Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL).
In a ruling Lord Fraser said that the degree of parental control varied according to the child's understanding and intelligence, and Lord Scarman further added that parental rights only existed so long as they were needed to protect the property and person of the child. He says:
"As a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to enable him to understand fully what is proposed."
Legal Aid was replaced in April 2000 by what is known as Community Legal Service Funding. It may be granted to eligible parties in Children Act cases, including contact, residence and parental responsibility proceedings.
The Legal Aid application may take several weeks but it is not necessary to delay making an application under the Children Act if you are prepared to act as a litigant in person at the beginning of the case.
A Legal Aid certificate may be challenged by either party on grounds of merit (the case should not benefit from public money) or means (a party is not financially eligible).
For further information You can contact the: Legal services Commission (England and Wales only).
or Scottish Legal Aid Board for Legal aid in Scotland.
From the 15th December 1999 new fathers were given the right to 13 weeks unpaid parental leave to be taken during the first five years of the child's life (this applies to employees with at least one year's continuous service).
These rules allow parents with children born or adopted after 15 December 1999 to take time off work to care for the child. This applies to all mothers, all married fathers, unmarried fathers who have obtained Parental Responsibility and adoptive parents. This leave may be taken when the child is born or placed for adoption. If twins are born each parent may take 13 weeks leave for each child.
Leave may be taken at any time up to the child's fifth birthday (or within five years of adoption). Parents of disabled children may use their leave up until the child's 18th birthday. While on parental leave parents will remain employed and are guaranteed the right to return to the same or similar job.
(This applies if the leave taken is less than four weeks)
Paternity Leave
In recognising that people need greater flexibility and that more fathers want to play a bigger part in the upbringing of their children new rules are to be implemented. Fathers will be allowed to take some or all of the second half of the child's first year as paid Paternity leave. The government aims to introduce this new provision by the end of Parliament.
The law on establishing paternity is currently under review by the Government.
Here at Fathers Together we strongly believe that it is the fundamental right of every child to know his or her true parentage. We also feel, that in the best interests of the child that the truth is determined where any dispute may arise.
The standard of proof required for a 'declaration of parentage' under section 27 of the Child Support Act 1991 is 'the balance of probabilities' which to us seems very low and unfair. The introduction of a unified procedure for establishing paternity using DNA testing of blood samples, carried out by accredited laboratories is a process we strongly advocate.
A declaration of paternity that is valid for all purposes can be obtained from the High Court under section 56 of the Family Law Act 1986. When such a declaration is made, the court notifies the Registrar General, who has a 'discretion' under the Births and Deaths Registration Act 1953 section 14A to to authorise the issue of an amended birth certificate (which neither parent signs).
There are a number of UK companies who offer a DNA testing services including
DNA Bio Sciences Tel 0800 321 7016 (Freephone)
(They offer what is called a 'peace of mind test' which costs approx £189.00. This service is not recognised or accepted by the courts but they do offer a 'Court approved' service so please do not hesitate to call them if you require their assistance.)
There is also the Forensic Science Service who provide results which will be admisible in a court of law. This an executive agency of the Home Office and their prices start at £176+VAT but do not include a doctor's fee etc.
Fathers Together believes that the use of a family mediator can be very beneficial and may eliminate lengthy and sometimes unnecessary legal conflict. We feel that it is not only in your own but also in your children's best interests to avoid going into an adversarial court battle until all other options have been exhausted.
You can contact the National Family Mediation at www.nfm.u-net.com
or Tel: 01392 271610 for details of your nearest service.
Unfortunately, unmarried fathers have few legal rights with regard to his children unless he has a legally binding Parental Responsibility Agreement or a Parental Responsibility Order. He has the right to make an application through the court for contact etc.
Fathers Together feel that whether you are 'Married or Not'" you have a responsibility to your child. Your child has the right to grow up in the love and care of both parents whether you are together or not and therefore it is partly your responsibility to protect these rights
An unmarried father who jointly signs the birth register with the mother from 1st December 2003 now has Parental Responsibility. This does not apply to children born before this date and unmarried fathers with children born before 2003 will have to apply to the court for Parental Responsibility. An unmarried father without Parental Responsibility has no right to act on the child's behalf unless it is in the case of an emergency. They have no right to consulted over which school the child attends, which religion, medical treatment the child receives, what name they are known by or even whether the child is fostered or put up for adoption. An unmarried father cannot get a passport for the child or access official documents or school/medical records.
In saying all this he is still liable to pay the Child Support Agency on demand and failure to do so may result in money being deducted from his wages before he receives it. Many men feel this is unfair as it is all too common where mothers stop fathers from seeing or spending time with their children and yet still claim and take money from the Child Support Agency. Unfortunately their is nothing you can do to avoid this.
We advise all unmarried fathers to seek Parental Responsibility. If the child's mother is unwilling to agree then it is vital that you apply to the courts for a Parental Responsibility Order.
We strongly oppose any form of abuse or violence towards either parent or any children whether it be directly or indirectly and we are particularly concerned that children do not suffer from the effects of domestic violence. Many people have different opinions on issues surrounding this but we feel that the removal or restriction of a parent's contact with his/her child is very harsh and should only be taken when there is substancial evidence of risk or direct harm to the child.
It is not uncommon for mothers to make allegations of domestic violence in response to a father's application for a Contact Order. As a result of this many children lose contact with their father irrespective of the truth, as such allegations are rarely examined properly in family cases. In some cases the court may order the use of a Contact Centre or order supervised contact, indirect contact, or even no contact.
Many fathers are forced to fight their court case or make applications without the use of a lawyer. In most cases it is due to financial reasons. Lawyers can be very expensive and Legal Aid may not always be available.Some choose to represent themselves as they feel they can do a better job and are dissatisfied with the standard of service provided by family law professionals.
Making an application under the Children Act 1989 is very easy. Firstly you must obtain a form C1 which is available from the Court Service website or any County Court or Family Proceedings Court. There are several orders (e.g. Contact, Parental Responsibility, Prohibited Steps,) that can be applied for on the same form for a single fee of £175 which must be paid when lodging the completed form at the court office. If you are on job seekers allowance or on income support their is no charge.
You will need to complete at least three copies of the form -
• one for the court,
• one for yourself,
• one each for service to all respondents.
As soon as the application fee has been paid and a case number issued and entered on the form you must then 'serve' the respondent's copy (by hand or by first class post). You may also have to enclose a 'Statement of Service' form supplied by the court. When serving the form by post it is advisable to send it recorded or registered delivery so that you have proof that you have served it in this manner as the respondent will have to sign for it and will be unable to say that she did not receive it.
An application can be filed at any Family Proceedings or County Court (or at the Principal Registry of the Family Division in London). The case will normally be heard at the nearest court (of the same level) to where the child is living.
If the matter is particularly urgent (eg if there is a possibility that the child may be taken overseas) you should make the application on a form C2 marking the envelope URGENT.
After making an application on Form C1, you should receive notification of a court date within about a month. It is usual that the first 'directions' hearing is normally kept very short, and is generally used only to check which matters are in dispute. Some courts may attempt a 'conciliation' appointment at the first hearing, with either the judge or an in-house CAFCASS Officer seeking agreement between the parties.
When you attend court, as you are the applicant you will be expected to make the opening address.
REMEMBER You should be as clear and concise as possible. Explain to the Judge the nature of the application, the basic facts and what it is that you would like the court to do.
The 'other side' will then reply, and the presiding judge (who may or may not have read the written evidence) will probably ask questions in order to clarify things.You will have an opportunity to cross-examine the respondent who in most cases will be your ex-wife or the mother of your children. It is important to take extra care not to appear obstructive,aggressive or vindictive.
The other side may also choose to cross-examine you. You will be required to swear (or affirm) that your evidence will be truthful, and the judge may also ask questions directly. Whoever asks the question, the answer should be directed to the judge. Do not respond to provocation.
Remember that the court, in most cases, would prefer disputing parents to settle the matter between themselves and going to court should only be if all mediation fails. |
