Understanding your rights in relation to parental responsibility is the first step in ensuring you are involved in making important decisions in your child’s upbringing relating to their health, welfare and education. We look at the current law on parental responsibility and how to acquire parental responsibility in circumstances where there is no automatic entitlement.
What does parental responsibility mean?
Parental responsibility is a legal concept relating to the rights and responsibilities that a holder (such as a parent) has in relation to a child. It is defined by section 3(1) of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
Parental responsibility entitles the holder to have a say in important decisions about the child’s upbringing, including:
- what surname the child should carry
- where the child lives
- where the child goes to school
- what medical treatment the child should receive
- what religion the child is raised with
- whether the child is permitted to leave the jurisdiction.
Parental responsibility is not concerned with the day-to-day care of the child, only those decisions that are likely to have a significant impact on the child’s life. As such, where parents are separated, it does not permit either parent to interfere with how the other parent cares for the child when in their care.
Further, whether an individual has, or does not have, parental responsibility for a child does not affect their financial obligations in relation to that child, for example, paying child maintenance.
Who automatically has parental responsibility?
All mothers, whether married or unmarried, automatically have parental responsibility for any child born to them.
Fathers who are married to the mother of the child when the child was born automatically have parental responsibility as do fathers who are not married to the mother, but who were registered on the child’s birth certificate on or after 1 December 2003.
This also extends to a second female parent who was in a civil partnership with the mother at the time of donor insemination or other fertility treatment where registered as the child’s legal parent on the birth certificate.
Neither parent will lose the entitlement to parental responsibility on divorce or dissolution of the civil partnership.
An Adoption Order gives the adoptive parent(s) an automatic right of parental responsibility.
How can an unmarried father obtain parental responsibility?
If you are an unmarried father and you are not named on the birth certificate, you do not automatically have parental responsibility. However, there are a number of ways in which you may be able to obtain parental responsibility, including:
Marrying the mother following the birth of the child.
Jointly registering the child’s birth with the mother (for births registered after 1 December 2003). If you are unmarried the mother of the child will need to consent to having your name put on the birth certificate.
Re-registering your name in circumstances where your name is not already registered on the birth certificate (for births registered before 1 December 2003). Again, the mother’s consent is required here.
Entering into a Parental Responsibility Agreement with the mother.
Obtaining a Parental Responsibility Order from the court.
Obtaining a Child Arrangements Order from the court. If a court makes an order for the child to live with you some or all of the time, the court must make a parental responsibility order while that order is in force.
How can a same-sex parent obtain parental responsibility?
If you are the same-sex partner of the child’s mother and you are not married or in a civil partnership, you do not automatically have parental responsibility.
As with an unmarried father, there are a number of ways in which you can obtain parental responsibility. These include registering your name on the birth certificate, entering into a Parental Responsibility Agreement with the mother or obtaining a Parental Responsibility Order via the courts.
However, as the partner of the child’s mother, you will need to hold the status of a ‘parent’ as set out under the Human Fertilisation and Embryology Act 2008.
Can step-parents obtain parental responsibility?
If you are the spouse or civil partner of the parent of a child, you can obtain parental responsibility through either a Parental Responsibility Agreement or by court order.
To enter into a Parental Responsibility Agreement you will need the consent of all those with parental responsibility. Where the birth father does not himself have parental responsibility the mother can, without the father’s agreement, enter into a Parental Responsibility Agreement with her new spouse or civil partner.
An unmarried step-parent who wishes to acquire parental responsibility for their step-child would have to apply for the child to live with them or for shared residence under a Child Arrangements Order, or alternatively, to adopt their stepchild.
Can grandparents obtain parental responsibility?
Parental responsibility is not automatically granted to those who are not parents, which includes grandparents, even if they care for and are responsible for the child on a day-to-day basis.
With regard to parental responsibility, grandparents are treated the same as any other person seeking to have a relationship with the child. They do not have any special rights. There are, however, limited ways in which a grandparent can obtain parental responsibility for the child, including:
- Obtaining a Child Arrangements Order from the court which requires that the child lives with the grandparent
- Obtaining a Special Guardianship Order
- Being appointed as a guardian to care for the child if those with parental responsibility for the child have died
- Adopting the child.
Can more than one person have parental responsibility?
It is common for more than one person to have parental responsibility for the same child at the same time. Further, each person with parental responsibility has an equal right to be informed and make important decisions about the child’s upbringing.
In circumstances where both parents have parental responsibility, there is no difference in law between the decision-making powers of either individual with parental responsbility, nor as between a parent with primary care or the non-resident parent.
Further, a person who has parental responsibility for a child at any time shall not cease to have that responsibility solely because some other person subsequently acquires parental responsibility for that child.
What if those with parental responsibility cannot agree on a major decision about the child?
If those with parental responsibility are unable to agree about a decision concerning the upbringing of the child, anyone with parental responsibility can apply to the court for a Specific Issue Order or a Prohibited Steps Order. Those without parental responsibility can also apply, but will need the court’s permission to do so.
A Specific Issue Order is used to look at a specific question about how the child is being brought up, for example, where they live. A Prohibited Steps Order is to stop a person with parental responsibility from making an important decision about the child’s upbringing.
In these circumstances the court will make a decision on behalf of the parties based on what is considered to be in the best interests of the child. These applications are rarely straightforward and you should always seek legal advice.
Should I seek legal advice about obtaining parental responsibility?
The question of whether or not you have parental responsibility of a child can give rise to many concerns. Commonly these concerns are only highlighted in disputes relating to the child.
In circumstances where agreement cannot be reached you may be left with no option but to apply to the courts for a Parental Responsibility Order. You may also be considering asking the court to decide upon a specific issue or to prevent a decision being made about your child’s health, welfare or education. You may even be considering seeking an order for residence or contact.
The law relating to parental responsibility can become highly complex, especially when combined with an application for a Specific Issue, Prohibited Steps or Child Arrangements Order.
In these circumstances it is always best to seek expert legal advice from a family law specialist.
Your legal adviser can talk you through the options available to you, and provide you with legal representation in court where agreement cannot be reached.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
