Is there such as thing as Fathers' rights or Mothers' rights and do Grandparents have any rights?
As a family law solicitor, acting for parents who cannot agree on the arrangements for their children, a common phrase I hear from clients is "my rights as a father" or "my rights as a mother". There is often a feeling of injustice, that some sort of inherent parental right is being infringed when difficulties arise upon their divorce or separation in determining who the children should live with, how much time they should spend with each parent, which school the children should go to and so on.
In addition, when parents separate this often has a knock-on effect on the amount of time the children spend with their grandparents, particularly the grandparents of their parent with whom they no longer live. I have acted for a grandmother, in the past, who was trying to be allowed to have contact with her son's children, in circumstances when her son had separated from his wife and left and former matrimonial home. Grandparents have to apply to court for permission to be able to apply for an Order allowing them to spend time with their grandchildren. This is often granted, but acts as a filter to protect children from spurious applications by any third party.
The fact of the matter is, that none of these important figures have any rights, as such. The Children Act 1989, which came into force in 1991, heralded a new dawn in the way the courts approach these types of cases. It is an applauded piece of legislation which received cross-party support and which has been repeated in other guises in many other jurisdictions. For the first time, the law shifted away from parental rights and reframed the wording to parental responsibility. The welfare of the children became the court's paramount consideration. So often in these cases there are key voices we cannot hear, those of the children, as we face parents across the court room arguing it out. By making the children's welfare paramount it focuses the judge on making an order which is not about a mother's or a father's or a grandparent's rights, but is about what is best for the welfare of the children concerned.
This is a useful reminder to my clients, whether they be those I act for as a solicitor, or for couples I see as a family mediator, that the priority should be to promote the welfare of their children. Of course, many families are able to do this without the need for any formal legal help, but when there are disputes they have the option of trying to resolve matters perhaps in mediation or, if need be, before the judge.
The law goes in cycles, it seems, and in 2014 the Children and Families Act came into force which amended the Children Act to add a presumption that the welfare of children will be furthered by involving in the children's lives the parent who is making an application for the court to determine an issue as regards their children. The involvement can be of any kind, direct or indirect. The presumption applies unless it can be shown that any involvement would cause harm to the children. It remains to be seen whether this nod to the idea of fathers' rights will have any real impact on the ground. The welfare of the children is still paramount so it is hoped that all minds will remain focussed on putting them first.