Sally Powell is an expert in the field of the legal rights of parents. She has been recognised by Legal 500  for her specialism in this area of law. Separating from the other parent of your child is one of the most difficult and stressful times a person could experience during their lifetime. Here, Sally explains some of the key legal points parents should consider if they are thinking of separating.
Generally a better starting point is for you and your child’s other parent to try and decide what the best arrangements for your child will be. It may suit your lifestyle for your child to spend an equal time living with both of you. However, it is generally more common for a child to spend the majority of their time living with one of their parents and regularly spend time with the other. Putting the needs of the child ahead of parental ‘rights’ tends to have a better outcome for all in the long run.
- Can one parent stop the other parent from seeing their child?
- What is co-parenting?
- What if we can’t reach an agreement regarding the arrangements for my child?
- Is there anything the court can’t make a decision about regarding my child?
- Will I lose parental responsibility for my child if we separate?
- How do I know if I have parental responsibility for my child?
- If we share parental responsibility, are there any decisions in relation to my child that I can make on my own?
- If we share parental responsibility, are there any decisions in relation to my child that we have to make together?
- What is a Parenting Plan and would it be useful for us?
- Are parenting disputes common?
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It is presumed to be in the best interests of a child to have a meaningful relationship with both parents, unless it can be shown that such involvement would put the child at risk of suffering harm. Having both parents play an active role in your child’s life is the best way to ensure that your child’s needs are met and to enable your child to retain a close relationship with both of you.
Unless there are any safeguarding concerns, one parent cannot stop a child from spending time with their other parent, unless the court has decided this would be detrimental to the child’s welfare. The court will only prevent a child from spending time with one of their parents if this would improve the child’s quality of life. Some examples of reasons the court may prevent a child from spending time with one of their parents are:
- domestic abuse
- drug and/or alcohol abuse
- inappropriate behaviour which places the child at risk
Every family and every situation is completely unique. In some cases, it is possible for a child to safely spend time with both parents even if one parent has acted inappropriately. For example, consideration should be given as to whether contact can take place on a supported or supervised basis. Extended family members or contact centre staff could monitor contact sessions to ensure the child is and remains safe. Alternatively, if it would be detrimental to a child to have face-to-face contact with one of their parents, it may be safe for them to have indirect contact (e.g. telephone calls, letters etc).
Specialist legal advice should be sought immediately if you are being prevented from seeing your child. If such a dispute is quickly resolved and it is recognised that a relationship with you is in your child’s best interests, it becomes easier to re-build and re-establish your relationship.
Making decisions together is often referred to as ‘co-parenting’; parents working together to make joint decisions about their child’s upbringing and agreeing on what would be in their child’s best interests. The majority of experts agree that co-parenting creates a calm and stable environment for a child (which, in turn, positively impacts on their emotional wellbeing).
The rules, as such, for co-parenting are essentially limited to the list of topics on which both parents must be consulted and make together. However, there are a lot of things which are a good idea to consult with each other on, although not mandatory or actual rules. The more you can discuss and agree together, the more successful your co-parenting relationship is likely to be.
Here are some things which may help; they are often strategies which would be useful in any confrontational situation:
- communicate – unless there’s been domestic abuse, with a little work this should be possible. Don’t use your child as a go-between. It’s not a positive example to set your child and they will feel uncomfortable.
- be flexible – if one of you asks to swap weekends to take your child on a trip or to visit a family member, is there any harm in doing so (unless you genuinely have plans already in place)? Your child will be grateful for and remember that they weren’t prevented from doing things because they fell on the ‘wrong’ weekend.
- pick your battles – all parents, whether separated or not, approach some situations differently. This is normal! Although you should try to agree ground rules and values, embracing your differences on occasion is not a bad thing.
- trying to think about things from the viewpoint of your child’s other parent can help you empathise with them; even if you don’t agree entirely, there is often a compromise which can be reached.
You and your child’s other parent may disagree about who your child will live with, how they will divide their time between you, or about a decision which needs to be made jointly by you both. In this situation either of you may make an application to the court to resolve any disputes.
Asking the court to become involved should always be a last resort. Court proceedings tend to be expensive, time-consuming, stressful and confrontational. The last thing you want to do is increase any animosity between you and your child’s other parent, which will negatively impact on your child’s emotional wellbeing (often in the long-term).
The court will always look to establish what would be in your child’s best interests. It will consider and apply certain factors, often known as ‘the welfare checklist’. These factors are as follows:
- the ascertainable wishes and feelings of your child (considered in light of their age and understanding)
- your child’s physical, emotional and educational needs
- the likely effect on your child of any change in their circumstances
- your child’s age, sex, background and any characteristics which the court considers relevant
- any harm your child has suffered or is at risk of suffering
- how capable you and your child’s other parent (and any other relevant person) are of meeting your child’s needs
- the range of powers available to the court.
Often, a parenting issue is not a ‘legal’ issue. The court generally expects parents to work together and agree how to parent their children. The court won’t usually get involved with day-to-day issues regarding the arrangements for your child, such as what time they should be going to bed, what they should wear, who can childmind them etc.
In many cases, you and your child’s other parent will share parental responsibility for them. If so, you will both retain parental responsibility after separation.
If you are the child’s mother, you will automatically have parental responsibility for your child from birth.
If you are the child’s father, you will usually have parental responsibility if you:
- were married to your child’s mother at the time your child was born
- jointly registered the birth of your child with your child’s mother on or after 1 December 2003
- entered into a parental responsibility agreement with your child’s mother
- obtained a parental responsibility order from the court
If we share parental responsibility, are there any decisions in relation to my child that I can make on my own?
Yes – here is a non-exhaustive list of decisions you could make while your child is in your care without notifying or consulting with your child’s other parent:
- how your child spends their time and activities they take part in
- how to routinely discipline your child
- personal care (e.g. washing, dressing, feeding, administering prescribed medication)
- care and control of your child’s personal possessions and property
- making and attending routine medical check-ups (e.g. appointments with a dentist or optician)
- attendance at school functions and parents’ evenings
- appointing a guardian in your will to care for your child in the event of your death
You should notify your child’s other parent of the following decisions (although you are not required to consult with them):
- seeking medical treatment for your child in an emergency situation (and the reasons for this)
- holiday bookings and taking your child abroad while your child is due to be in your care
- routine visits to a doctor or nurse (and the reasons for this)
- change of address within the local area, that would neither disrupt contact arrangements nor require a change of school
- change in living arrangements, such as a change to those who are or will be living in the same household
If we share parental responsibility, are there any decisions in relation to my child that we have to make together?
Yes, anyone who has parental responsibility for your child must be consulted about and jointly make decisions regarding the following:
- which school your child will attend
- whether your child should take time out of school (and the reasons for this)
- planned medical and dental treatment (beyond routine check-ups), including whether or not your child should be immunised or take prescribed medication
- circumcision or sterilisation
- at what age your child should be allowed to watch videos or play computer games (e.g. those recommended for children over the age of 12, 12A, 15 etc)
- your child’s surname
- whether or not your child should relocate to another part of England and Wales or abroad
A Parenting Plan is a document setting out the practical issues of your day-to-day parenting. It helps focus discussions and is useful to record any agreements. It saves misunderstandings in the future and serves as a helpful reminder, as you can easily refer back to it. If you do end up applying to the court, your parenting plan can be evidence of what was intended and agreed when you separated.
You can’t plan for everything and sometimes unforeseen things happen, which is why flexibility is important. The Parenting Plan itself is extremely flexible – there is no set format but generally, the more detailed you can make it, the more useful it will be to refer to in the future.
Very! However, if you start off in the right way by positively promoting a co-parenting relationship, they can be avoided.
What should my next step be?
If you do separate from your child’s other parent, try to work with them to raise your child together. This is not an easy task, but it is possible. Nurturing your child and encouraging them to have a loving relationship with both of you will enable your child to grow-up feeling secure and loved, something every parent wants for their child.
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Chat to the Author, Sally Powell
Executive Partner, Bishop's Stortford officeMeet Sally