Married parents share joint parental responsibility and come before the Court as equals. The children's welfare is the court's paramount consideration. If there is a dispute as to with which parent the children should live, the court must decide one after either parent issues a formal application to the court for a residence order. In considering which parent is best able to meet the child's best interests, the Court will apply the "welfare checklist" (s1(3) Children Act 1989).
• Who is best able to meet the child's day to day needs? • What has the domestic routine been in the child's life to date? • Even if there is little to choose between the two parents in terms of their actual parenting skills, are the work commitments of one more conducive to having primary care of the children? This last consideration is often fundamental and traditionally, has tended to work in favour of mothers, but increasingly, this need not necessarily be the case. • In the case of unmarried parents, the mother has sole parental responsibility until the father acquires it by way of an agreement, or Court Order. He will however be granted parental responsibility automatically if he has a Residence Order in his favour. • In the case of very young children, it is a fact that courts tend to assume they are better off living with their mother unless clearly shown to the contrary. Nevertheless, there is no presumption of law and the courts have to consider each case on its individual merits. Although the odds may seem stacked against a father, the facts may mean that this is not necessarily the case.
• Even where one parent does have a Residence Order in his or her favour, that does not alter the fact that the other parent retains parental responsibility and has an important role to play in the child's life. In theory at least, a Residence Order is not a passport to making important decisions about the child's upbringing on a unilateral basis.
