Access to children and cohabiting couples
If you have a right of access to a child, you have the right to spend time with the child and to take the child out for specified periods of time. You may also have the right to have the child reside with and go on holidays with you for a proportion of the school holidays and the right to have the child stay overnight in your house on alternate weekends.
When the parents of a child separate and they cannot agree on access rights, the courts will decide. The welfare of the child will be the most important factor. In general, the courts consider that it is very important for the welfare of a child that it should have a relationship with both its parents, and they are slow to deny access rights to the natural parent of a child.
By law, unmarried mothers are the sole guardians of children born outside of marriage. A father may apply for access whether or not he is a guardian. He can do this even if his name is not on the child's birth certificate, and even where his application for joint guardianship has been turned down.
If both guardianship and access are being applied for, then separate applications must be made, but both applications will be heard by the court at the same time.
Unless there are unusual circumstances, the unmarried mother is usually granted custody of her child and the unmarried father is granted access rights.
If your same-sex relationship breaks down, you may wish to continue to have contact with your former partner's child. Section 55 of the Children and Family Relationships Act 2015 has amended the Guardianship of Infants Act 1964 so that a person with whom a child resides or has previously resided can apply to the District Court for access to the child.
Section 9 of the Children Act 1997 amended the Guardianship of Infants Act 1964 so that a relative, such as a grandparent, can apply to the District Court for access.
The court can impose an enforcement order if you have been been unreasonably denied the access the court granted you. This may include:
- You getting compensatory time with the child
- Your expenses being reimbursed
- One or both of you attending parenting programmes, family counselling or receiving information on mediation
How to apply
It is always advisable to get legal advice and representation, however, you are entitled to represent yourself. The Law Society has a directory of solicitors' firms which you can search for a solicitor in your area.
To enquire whether you are eligible for Legal Aid, contact your nearest law centre. The law centre staff will assess your means and advise on financial eligibility. Legal Aid is not free and everyone must pay a contribution towards costs.
Download an application form for Legal Services (pdf) and bring this with you to your nearest law centre.
FLAC (Free Legal Advice Centres) is an independent, voluntary organisation that operates a network of legal advice clinics throughout the country. These clinics are confidential, free of charge and open to all. Contact your nearest Citizens Information Centre for information on FLAC services in your area. FLAC also runs an information and referral line during office hours for basic legal information.
FLAC has produced a series of basic leaflets on various areas of law which may be useful. These are available from your local Citizens Information Centre and from FLAC or can be downloaded from the FLAC website.
The Family Mediation Service can enable couples who have decided to separate to negotiate their own terms of agreement, while addressing the needs and interests of all involved. The service is free. Read more about the Family Mediation Service here.