I often have client’s who are father’s questioning whether the Court’s automatically make the decision that their children should remain living with their mother after a relationship breakdown; simply because this appears to be the tradition in the past.
Although the Courts may be perceived from the outside to have outdated beliefs akin to those traditionally from the 1950’s, it's in fact the case that this is not what is happening on the inside. This can be seen in the most recent outcome in the case of “Re H (A Child)  All ER (D) 01 (Apr)”.
Maternal or paternal status does not give the Courts the answer to any question of where a child should live after their parents have separated, and one parent issues an application for a Residence Order.
The Court will always put the child’s welfare as their paramount consideration and base their decisions on what is in the child’s best interests.
Therefore if there are concerns with one parent’s ability to carry out the day to day care of their child and they are genuinely unable to meet both their emotional and physical needs and there is a risk of harm, then the Court will order that the child should reside with the more suitable parent.
The Court will still encourage contact with the non-resident parent so as to maintain the relationship and bond with the child. This is regardless of whether the parent is the mother or the father.
In this case the matter came down to the child’s wishes and feelings, and the older the child is, the more weight is added by the Court to their wishes. The child had expressed a strong desire to live with her father and had even threatened suicide if she were made to stay with her mother; and so the Court granted the father’s application for Residence.
Therefore I urge all those father’s in separated families to seek legal advice before giving into outdated presumptions.
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