Children matters

In a divorce or relationship break-up, it is the children who more often than not are affected the most.

Parties should always ensure that whatever arrangements they make between them they always put the best interests of their children first. Indeed this is the main principle by which the court base their decisions upon when resolving disputes concerning children.

The law is focused on the rights of the children, rather than those of the parents.

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If you were married, each party has parental responsibility and so is entitled to certain things, like knowing where the child is living. They can also apply to the court over issues of contact or residence for their children.

In most instances absent parents – most commonly fathers – have the right to regularly see their children, know where they are living and have access to certain information about their upbringing, such as how they are doing at school.

If a couple split up and were not married, only the mother has automatic parental responsibility. The father may also have parental responsibility, depending on when the child was born and if his name is on the birth certificate.

Step-parents also have a certain expectation of being involved in the lives of the children of their new partners. Their rights and responsibilities though are limited.

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While the law does not define in detail what parental responsibility is, the following list sets out the key roles:
  • providing a home for the child
  • having contact with and living with the child
  • protecting and maintaining the child
  • disciplining the child
  • choosing and providing for the child’s education
  • determining the religion of the child
  • agreeing to the child’s medical treatment
  • being responsible for the child’s property
  • appointing a guardian for the child, if necessary
  • allowing confidential information about the child to be disclosed


A mother automatically has parental responsibility for her child from birth. However, the conditions for fathers gaining parental responsibility varies throughout the UK.

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In England and Wales, if the parents of a child are married to each other at the time of the birth, or if they have jointly adopted a child, then they both have parental responsibility. Parents do not lose parental responsibility if they divorce, and this applies to both the resident and the non-resident parent.

This is not automatically the case for unmarried parents. According to current law, a mother always has parental responsibility for her child. A father, however, has this responsibility only if he is married to the mother when the child is born or has acquired legal responsibility for his child through one of these three routes:

  • (from 1 December 2003) by jointly registering the birth of the child with the mother
  • by a parental responsibility agreement with the mother
  • by a parental responsibility order, made by a court

Living with the mother, even for a long time, does not give a father parental responsibility and if the parents are not married, parental responsibility does not always pass to the natural father if the mother dies.

All parents (including adoptive parents) have a legal duty to financially support their child, whether they have parental responsibility or not.

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A father can apply to the court to gain parental responsibility. In considering an application from a father, the court will take the following into account:

  • the degree of commitment shown by the father to his child
  • the degree of attachment between father and child
  • the father’s reasons for applying for the order

The court will then decide to accept or reject the application based on what it believes is in the child’s best interest.

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