Info & Advice

Your Children FAQs Answered

Guest Blogger Sam Carter, Specialist Family and Children Lawyer of Major Family Law answers some frequently asked client questions arising from parental disputes.

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My spouse has left me for someone else and doesn’t want to see the children. How do I make him see the children?

Unfortunately, there isn’t much you can do in this situation. A Judge cannot force a parent to spend time with their children if that parent does not want to. However, they would still be responsible for paying you child maintenance. If you and your spouse cannot agree the amount of child maintenance payable then you would need to make an application to the Government’s Child Maintenance Service who would undertake an assessment.

I’ve just separated from my partner. What happens at Christmas with who sees the children on Christmas Day?

The law says that all decisions on the contact arrangements for a child must be based on what is in the best interests of the child, not the parents’. Most Judges will take the view that, unless there are safeguarding concerns, a child should be allowed the opportunity of spending time with both parents on Christmas Day. This could either mean your child spending Christmas Eve and Christmas Day morning with one parent and then Christmas Day afternoon and Boxing Day with the other parent, with that then alternating each year, or it could mean the child spending Christmas Day with one parent one year and then Christmas Day with the other parent the following year and so on. There will also be practical considerations such as how far the parents live from the other. Another relevant consideration will be whether the child has any half-siblings.

If you cannot agree the Christmas arrangements with your spouse then you would need to bring an application to court. Although the court can deal with cases on an urgent basis, this is not the norm. Therefore, if it is near to Christmas and you have a dispute with your ex about the Christmas contact arrangements then it is unlikely the court would be able to make a decision for you before Christmas Day. In those circumstances you would need to have child-focused discussions with your ex with a view to resolving the dispute. If your ex is difficult then instructing a solicitor to communicate with them on your behalf would be a sensible step to take. This will ensure that there is no last-minute uncertainty and stress caused in the run up to Christmas.

My partner and I have just split up and I’m pregnant. Does he have any rights over my unborn child?

If you are married to the father then he will automatically assume Parental Responsibility for your child and be named on the Birth Certificate. If you are not married to the father then he would need to have his name on the Birth Certificate in order to assume Parental Responsibility. The Registry Office will only name an unmarried father on the Birth Certificate if they attend the birth registration appointment with you. In other words, therefore, if you are not married to the father then he would need your agreement in order to be named on the Birth Certificate and to assume Parental Responsibility.

Can my partner insist on being present at the birth?

The short answer is, ‘no’. That is the legal position regardless of whether you are married to the father or not. It is your decision and your decision alone as to who else, if anyone, attends the birth.

If the father of my child is not named on the Birth Certificate then is it possible to add his name later?

Yes this is possible. If you change your mind after the birth is registered and want to add the father’s name then you would simply need to contact the Registry Office to ask for another appointment. The father would need to attend with you.

If you don’t change your mind then the father could apply to court to ask for a Declaration of Parentage and Parental Responsibility Order. If such an application is made and you confirm to the court that he is the biological father then the court will have no choice but to make a formal Declaration of Parentage confirming him as the father of your child. The court would send that order to the Registry Office who would in turn update the Birth Certificate. If there is a dispute as to paternity then the court has the power to order a DNA paternity test. If that is positive then, again, the court would make a Declaration of Parentage.

The making of a Declaration of Parentage is only a formal, legal recognition that a man is the father of your child and it would add their name to the Birth Certificate, but it would not necessarily confer ‘rights’ on them. This is because Parental Responsibility is not automatically given to a father whose name is only added to a Birth Certificate later by way of a formal Declaration of Parentage. In order to also get ‘rights’ (i.e. Parental Responsibility) the court would also need to make a separate order, called a Parental Responsibility Order. The court would assess why your ex wants Parental Responsibility, how he would exercise it and what his intentions are regarding playing a role in your child’s life before making that separate order.

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