‘My partner and I have been separated for some time. we have a child together and for some time he had contact with her only for me to subsequently discover he was arrested for unrelated child abuse offences. He’s been in and out of prison and me and my child are frightened that he will continue to have an influence on her life by association. How do we deal with this?
Court guidance; restriction of child arrangements, parental responsibility, and surname change
by Rob Price | Associate Solicitor – Family Law
The very first question that a court is going to ask itself is this; Is it in your daughter’s best interests for there to be contact between her and her father? What is paramount in your case is what is the relationship like now between father and daughter and what are the risks to your daughter of this continuing? The courts often address these issues and indeed have recently done so in April this year when the High Court considered very similar circumstances facing a family.
The facts
Father/daughter have the right to a relationship and time together just as you do as a mother. Parents who share parental responsibility do so regarding the upbringing of their children. Those are all rights, duties, powers, responsibilities, and authority attributable to your daughter.
Your daughter’s surname is shared between you because you are not married.
Your rights
As Mother and indeed primary carer, you are perfectly entitled to determine what is in the best interests of your daughter. But so is Father.
You can exercise your right to ask the court to consider what is in your daughter’s best interests instead here because you have the right to ask that Father’s rights concerning your daughter are limited or removed.
The law
Your daughter’s interests are of paramount importance to the court. First and last consideration. Always. Is it right that the court should limit or remove the father/daughter’s rights to contact and how parental responsibility is exercised? Is that really in the best interests of a child, whose fundamental right is to have both parents involved in their life, and for this right to be removed? Ordinarily, a court would not order that. All alternatives are explored first to protect all rights within the family if those remain in the best interests of the child.
In April 2021, the High Court had to address exactly this. Removing these rights from a parent is a monumental decision for a court to make so please bear this in mind when considering how the court approached this issue.
Contact
- Is there a relationship between Father and Daughter? If there is, is it dangerous to the child’s welfare for this to continue at all?
- What is the risk of continuing contact to the Daughter’s welfare and indeed your own, physically, emotionally, educationally?
- Would any lesser step be of benefit to the welfare of your daughter rather than no contact e.g. indirect contact by letter/email, supervised contact, photographs of Daughter sent to Father?
Change of surname
- Is there a good reason why the formal biological link by surname should be severed?
- What has been the association between Father and Daughter since registration of name? Has it been close? Ongoing? Sporadic? Non-existent?
- Does Daughter’s association with Father’s surname, given his behaviour/convictions, cause harm by, e.g. stigma, to the emotional physical and/or educational welfare of Daughter if the surname remains?
Removing parental responsibility
- What is the emotional attachment, if at all, between Father and Daughter?
- What is the Father’s level of commitment to the Daughter’s ongoing welfare?
- What steps has Father taken to address his behaviour and mitigate ongoing risk?
- If Father were to apply for parental responsibility today, would this be granted by a court?
These questions are not the only ones that needed to be asked/answered but are derived from a wide range of child safeguarding issues that a court must and do address when determining the best interests of a child. The outcome of this case is rare because it severed all links between the father and child. For that to happen, overwhelming evidence of harm to the child’s ongoing welfare needs to be determined.
What is important for you to understand is that safeguarding is a fundamental element of child protection which is vigorously applied by the courts in cases of this nature.
It’s a very difficult one but do call us and we can talk you through this, sensitively and carefully.
