"Where are my kids?" Rights and Responsibilities that come with fatherhood

Charles Russell Speechlys Succession Watch: Episode 7

“…and you won't have my baby because you never even thought, honestly, that you'd be with me more than, like, four f***n' years” – Tom to Shiv

In episode 7 of Succession, it’s election eve. Some are getting “pre-election” jitters, Matsson is creating a second India to help fabricate his numbers and Tom offers, in the name of love, a scorpion encased in resin to Shiv (we’re not convinced either). And we are left feeling relieved that Tom is going to bed (rather than jumping off the balcony) in the aftermath of his and Shiv’s most explosive argument yet.

This episode also gave us further insight into Kendall’s relationship (or lack thereof) with his children, in particular Sophie, the potential implications of Shiv choosing to have, or not have, a child, and Tom’s being kept in the dark about his (presumed) status as a future father. All of which has got us thinking about the different types of rights and responsibilities that come with fatherhood and, in particular, the contrasting positions of Kendall (a divorced and absent parent) and Tom (a married and soon-to-be parent).

TOM: Unborn children and rights of fathers before birth

“And I think you are maybe not a good person to have children” – Tom to Shiv

At this stage in the series, we know that Shiv is pregnant. We also know that Shiv and Tom are married, and that Shiv is keeping her pregnancy a secret from Tom (and at 20+ weeks she is going to have to tell him soon). In this context, we find ourselves asking: is Tom the biological father? Is Tom entitled to be told that Shiv is pregnant? Does Tom have any rights vis-à-vis the unborn child? Are those rights affected by Tom’s status as Shiv’s husband and biological father?

Under English law, a father does not have any right to be informed of the pregnancy, to contact the mother or to make decisions relating to the pregnancy when the mother is pregnant. The things that a mother may do without the father’s consent, include: (1) terminating a pregnancy (2) receiving medical treatment; and (3) travelling abroad.

In light of the above, if Shiv wished to terminate the pregnancy (and it is not too late to do so legally), she would not require the consent of the father, i.e., Tom, to do so. We shall no doubt find out in the aftermath of the pair’s ugliest fallout yet (in which Tom brutally told Shiv that she was “maybe not a good person to have children”) whether Shiv will decide to proceed with her pregnancy or not and whether Tom (assuming he finds out about the pregnancy) tries to influence or intervene in Shiv’s decision.

Once a baby is born, however, the persons with parental responsibility (usually the mother and the father) have equal rights and responsibilities in respect of the child. A mother automatically acquires parental responsibility for her child from birth, as does her husband if she is married (like Shiv) or if the father is registered on the birth certificate. This is because the law, in effect, presumes that the mother’s husband (i.e., Tom) is the baby’s father. 

KENDALL: Fathers’ rights and child arrangement orders

“You’re telling me someone pushed our daughter…. like, where were you?” – Kendall

In this episode, we find ourselves early doors being witness to a conversation between Kendall and his estranged wife Rava. They end up discussing an incident involving their daughter, Sophie, where she has been pushed by a stranger while on her way to school. Upon knowing this, Kendall immediately asks Rava where she was when this occurred. The question is then, who has responsibility for Sophie at this time? Who makes the decisions in Sophie’s day-to-day life given that her parents are estranged/divorced?

We are told in earlier episodes that Kendall and Rava share two children, Sophie, and Iverson, and it is presumed, on the basis they were married at the time the children were born, or that the children were adopted, that they both have parental responsibility. Tom’s rights in respect of Shiv’s unborn child are very different than those of Kendall. This stems from the fact that an unborn child is not regarded by law as a ‘legal person’ until birth, which means that up until that time, the foetus is considered to fall within the autonomy of the mother. On the other hand, Kendall has already obtained parental responsibility and, as a parent of the child, has the ability to make decisions jointly with the mother about the child’s life, in particular decisions that are considered to be significant and require consent of both parents. For example, if a parent wanted to change the name of the child or move abroad with the child.

Child arrangements order

Estranged/divorced parents may seek to formalise their agreement in respect of their children by obtaining a Child Arrangements Order. Such orders were introduced in April 2014 by the Children and Families Act 2014 (and these amended section 8 Children Act 1989) in place of orders for ‘custody’ and ‘access’. A Child Arrangements Order is an order that regulates the arrangements in respect of any of the following: 

• With whom a child is to live, spend time or otherwise have contact with any person; and
• When a child is to live, spend time or otherwise have contact with any person.

In terms of the “residence” aspects of a Child Arrangements order, which sets out with whom a child is to live/when a child is to live with any person, this can last until the child attains the age of 18 unless the Court, at its discretion, choses to discharge this at an earlier date by making a Care Order.

The “contact” element of a Child Arrangements Order which considers with whom and when the child is to spend time with or otherwise have contact with a person, this ceases to have effect when the child attains 16, unless the court is satisfied that the circumstances of the case are exceptional.

Parental responsibility is exercised concurrently – meaning that each parent can generally make their own decisions about the child when in their care. This includes, how the child is to spend their time during contact, activities undertaken, and continuance of medical treatment prescribed by a GP. However:

• Some decisions require the consent of the other parent – such as relocating overseas with a child or changing a child’s name;
• Some decisions require the other parent to be consulted – such as planned medical treatment or the school a child should attend;
• Some decisions require the other parent to be notified – such as emergency medical treatment or a change in living arrangements (e.g., changes to the household in which the child is living).

Generally speaking, it is in circumstances where the decision is considered more momentous and affects the child’s welfare that a parent would normally be consulted or notified. This is likely why Rava mentioned the incident with Sophie as it concerned her safety, and it was therefore in the best interests of the child for both parents to be aware and to consider the best course of action.

What rights does a father have to see his children?

“I will do anything to protect her” – Kendall

The Court assumes that it will be beneficial for a child to have contact with both parents, provided it is safe to do so (i.e., there are no safeguarding concerns). Concerns of this nature may arise in circumstances where there have been issues of criminal offences, drug or alcohol abuse, domestic abuse or any other form of inappropriate behaviour which would place the child at risk.

We know that Kendall has a history of drug and alcohol abuse from events in season 1. In the same season, Kendall is reminded of his parenting duties by Rava, and she asks if he has been using drugs again, to which he assures her he is not. Further down the line, Kendall attends a rehabilitation centre in season 2 and relapses in season 3. These would likely demonstrate serious concerns in Kendall’s behaviour in relation to his children’s welfare.

Can a mother deny the father access?

“Hey, hey – where are my kids?” – Kendall

“What a surprise, Kendall doesn’t know where his kids are” – Roman

Under English law the only valid reason to withhold contact is if there is a risk of harm to the child (e.g., physical, psychological). It is not appropriate for an ex-partner to stop the other from having contact with the child unless the continued contact would be of detriment to the child’s welfare and even then, a Court may have to decide whether there is a risk of harm and whether that is sufficient to affect contact arrangements.

It is therefore not appropriate for a father to be denied contact with a child for reasons such as: (1) refusing to pay child support; (2) being late on occasion when picking up or dropping off the child(ren); (3) he does not see the child(ren) regularly, even though an agreement or court decision states this should be the case. As such, the law in the UK is solely centred on the child’s welfare and therefore decisions regarding contact are made on the basis that it will improve the child’s quality of life, not the life of the parent. Absent any safeguarding concerns, the court actively promotes a situation where the child has a relationship with both of their parents.