1. Introduction
Following separation, many fathers are concerned about whether they will continue to play a meaningful role in their child’s life. Questions frequently arise about where a child will live, how much time they will spend with each parent, and whether the family court favours mothers over fathers.
English family law does not recognise superior parental rights based on gender. Instead, the court’s paramount consideration is the welfare of the child. While fathers can encounter practical difficulties in securing contact arrangements, the legal framework is designed to focus on the child’s best interests rather than the competing claims of the parents.
This article outlines a father’s legal position after parental separation, how the court decides contact arrangements, and how a father may navigate common hurdles that arise in proceedings.
In practice, discussions about “fathers’ rights” usually concern two separate issues:
- whether the father has parental responsibility; and
- whether the father can spend time with (have contact with) the child.
These issues are often linked, but they are not the same thing.
2. Understanding parental responsibility
Fathers’ legal rights stem from the legal concept of parental responsibility. This is a legal status that gives the holder of parental responsibility the right to make decisions about the child’s upbringing, such as those regarding education, medical treatment, and religion.
A practical disparity exists between the status of mothers and fathers; birth mothers acquire parental responsibility automatically, whereas this is not necessarily the case for fathers. In Re C & A (Children) (Acquisition and Discharge of Parental Responsibility by an Unmarried Father) [2023] EWHC 516 (Fam), the High Court summarised the law as follows:
- The father acquires parental responsibility automatically if he is married to the mother at the time of birth.
- If the father is not married to the mother at the time of birth, then he can establish parental responsibility through: being named on the birth certificate; a formal parental responsibility agreement with the mother; or, a court order.
Where parental responsibility is jointly held, it is shared equally between the holders. In such a case, neither parent has a superior right to make decisions about the child. Sometimes, those with parental responsibility cannot agree on such decisions; in this scenario, the court might be asked to intervene by making a specific issue order (for further detail on how the court determines specific issue order applications, read our article: Specific Issue Orders: A Guide for Parents).
3. Does parental responsibility guarantee contact?
In short, no. The family court treats parental responsibility and child arrangements as distinct questions.
Parental responsibility does not guarantee a parent the right to live with or spend time with a child. This is a separate issue determined by “Child Arrangements Orders”. The court makes decisions on child arrangements with reference to the child’s welfare, as opposed to parental rights.
A father can apply for a Child Arrangements Order even if he does not have parental responsibility.
4. Making a child-focused contact proposal
Where parents cannot agree arrangements between themselves, a useful starting point is to prepare a proposal setting out the desired contact schedule. There is no standard formula for determining child arrangements, therefore a neat “50/50” split is not always possible.
Any proposal should focus on what is best for the child. For example, frequent overnight stays with the father for an infant who is still breastfeeding will be looked on unfavourably by the court. Similarly, depending on where the parents are living, arrangements that require lengthy travel on school nights will be viewed disapprovingly.
Tip for clients: While a consistent structure is important, you should avoid rigidity. A willingness to accommodate flexibility in the contact schedule for special occasions, such as family events, demonstrates the kind of child-focused approach that the court gives credit for.
5. Mediation
Unless an exemption applies, parents must attend a Mediation Information and Assessment Meeting (MIAM) before making an application to the Family Court. A MIAM involves a discussion with an accredited mediator to explore whether mediation may help to reach an agreement.
Many disputes can be resolved through mediation without the need for court proceedings. If mediation cannot resolve the dispute, a father may apply for a Child Arrangements Order using a “C100” application. For further explanation of the legal procedures involved in child arrangements, see our article: Navigating Child Contact Disputes: A Short Guide.
6. How the court decides child arrangements (and can you get 50-50 “custody”?)
Although English law no longer uses the term “custody”, many parents continue to search for “50/50 custody” arrangements. The court can make arrangements under which a child spends equal time with both parents. However, there is no legal presumption that time should be divided equally.
When determining children matters, the court’s paramount consideration is the child’s welfare. Under section 1(3) of the Children Act 1989, the judge evaluates the “welfare checklist” balancing factors such as:
- the child’s wishes and feelings, where appropriate in light of their age and understanding;
- the child’s physical, emotional, and educational needs;
- the likely effect on the child of any change in circumstances;
- any harm the child has suffered or may suffer; and
- the capability of each parent to meet the child’s needs.
A typical order will reflect the child’s needs and practical family circumstances, addressing:
- When the child will spend time with each parent, for example, “week-on/week-off” cycles, alternate weekends, or supplementary mid-week contact.
- Changes in arrangements between school term time and holidays.
- Travel and handover arrangements.
- Communication between visits, such as video calls.
7. What if the mother breaches the order?
Where a Child Arrangements Order is in force, both parents are expected to comply with it. If a mother repeatedly prevents contact without good reason, then the father may apply to the court for enforcement.
In enforcement proceedings, the court has a range of powers available to it, including holding the offending parent in contempt (though this is usually seen by the court as a last resort); fining them; or, making them do unpaid work.
Before taking enforcement action, it is often sensible to keep a careful record of missed contact and attempts to resolve matters amicably.
8. Is there a bias against fathers?
There is no legally justified bias in favour of mothers in the family court. On the contrary, the courts recognise that “it is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom he or she is not living” (see J-M (A child) [2014] EWCA Civ 434). Despite this, some fathers worry that there is, in the family court, a cultural bias in favour of mothers.
It is important to remember that the court’s focus is on the welfare of the child. In many families, the mother would historically have been the primary caregiver; this may mean that the court prioritises the child’s stability by deciding that the child’s primary residence should be with the mother. This approach may sometimes seem unfair, however, the approach reflects the court’s single-minded focus on what is best for the child, as opposed to a desire to create “balance” between the parents.
9. When can contact be restricted?
The court can restrict or terminate contact where there is evidence that contact would cause harm to the child. However, the threshold is high. In D v E (Termination of Parental Responsibility) [2021] EWFC 37, the court reiterated that “contact should be terminated only in exceptional circumstances […] as a last resort, when there is no alternative”. While the court in this instance prohibited direct contact with the father, it did so because the risk of harm to the child − both directly, and indirectly through the harm caused to the mother as the primary caregiver − outweighed the value of the paternal relationship.
Where there are concerns about direct contact, the court usually considers alternatives such as supervised contact (for example, at a contact centre, or with another adult present) or indirect contact (such as telephone calls or letters).
10. Domestic abuse allegations and fact-finding hearings
There has been a rise in the volume of domestic abuse allegations raised in children proceedings. This is partly because the definition of domestic abuse has expanded in recent years to incorporate forms of non-physical abuse and coercive control.
Before making a Child Arrangements Order, the court may need to list (schedule) a fact-finding hearing to determine whether the disputed allegations are true. For more detail on this, see our article: Family Court Fact Finding Hearings: a Guide.
A fact-finding hearing may be deemed necessary where the allegations are relevant to the child’s welfare. In GI v K [2026] EWHC 480 (Fam), the court clarified that a fact-finding hearing may be needed to inform the overall welfare assessment, even where the other parent is not restricting contact or suggesting contact would be unsafe. However, in our view this decision is exceptional, and in the majority of cases the court will list a fact-finding hearing only if one parent asserts that domestic abuse is a reason to limit contact in some way.
If domestic abuse allegations are made against you, then you should take legal advice as soon as possible – having such allegations proved against you can have a significant impact on your ability to have contact with the child in question. For further guidance on how to approach the court process, see our article: Child custody and child arrangement mistakes you must avoid in court.
Tip for clients: if the other parent raises allegations against you, it is important to avoid escalating the conflict with them. You should try to keep any communications calm and child-focused, as this indicates to the court that you are committed to the child’s best interests.
11. What if my child refuses contact?
Few experiences are more distressing for a parent than feeling rejected by their own child. Many fathers come to us after separation, concerned that a child who was once happy to spend time with them now refuses contact or appears reluctant to maintain the relationship. It is natural in these circumstances to feel confused, hurt, and frustrated, particularly where the reasons for the change are unclear.
From a legal perspective, the court does not automatically assume that a child’s refusal means contact should stop. When determining children matters, the court considers the child’s wishes and feelings in light of their age and understanding, but these are only one factor within the broader welfare assessment.
In some cases, a father may believe that the mother has alienated the child from them by instilling negative thoughts about the father in the child’s mind. In Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam), the High Court described such behaviour as “a process of manipulation of children perpetrated by one parent against the other”.
The court takes a nuanced approach to these situations. A child’s rejection of a parent does not automatically establish parental alienation. The court will consider whether the child’s views arise from their own experiences, whether there are welfare concerns affecting the relationship, or whether the child has been influenced by the other parent. It is only where the child’s rejection is unjustified and demonstrably caused by the conduct of the other parent that alienation may be found.
Where alienation has occurred, the family court is expected to respond robustly. As the Court of Appeal stated in Re: S (Parental Alienation: Cult) [2020] EWCA Civ 568, “the obligation on the court is to respond with exceptional diligence and take whatever effective measures are available.” In serious cases, this can include transferring a child’s primary residence from one parent to the other and imposing restrictions on the offending parent’s contact.
12. How we can help
Navigating disputed child arrangements can be highly stressful, particularly when proceedings involve allegations of domestic abuse. Careful preparation and early advice are often critical in securing contact. Our specialist family barristers can help you navigate the process in a considered and strategic manner, providing expert assistance at every stage.
- Advice and strategy: clear and practical guidance on the strength of your case, likely outcomes, and the best way to resolve the matter.
- Drafting: preparation of C100 applications, witness statements, and supporting evidence.
- Representation: expert advocacy at all court hearings, including the FHDRA, fact-finding hearing, Dispute Resolution Appointment, directions hearing, and final hearing.
We work with solicitors and clients on a direct access basis. This means you can instruct our barristers directly without going through a solicitor. This can save time and reduce costs, while still giving you access to specialist support. Find out more about our direct access offering here.
We represent clients in London, Birmingham, Milton Keynes, Northampton, Bedford, Luton, and across the UK.
We regularly advise and represent fathers in disputes concerning:
- Child Arrangements Orders
- Enforcement applications
- Relocation disputes
- Fact-finding hearings
- Allegations of domestic abuse
- Parental alienation allegations
- Applications for parental responsibility
You can contact us to book an initial consultation.
13. About us
Billal Malik is a barrister who practises in family court disputes including child arrangements proceedings and domestic abuse allegations.
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