Parental Responsibility

What is parental responsibility?

Parental responsibility means the legal rights, duties and authority a parent has for a child, such as deciding on schooling, medical treatment and religion.

In England and Wales, a mother always has it. A father has it if he was married to the mother at the birth or is named on a birth certificate registered on or after 1 December 2003. Others can get it by agreement or court order. It lasts until the child is 18.

It is a legal term that carries significant weight. It refers to the rights and duties that biological parents, or adults who obtain parental responsibility by other means, have towards their children.

But what does it truly mean to have parental responsibility? In this article we look at the legal implications in England and Wales, the obligations it imposes, and the rights it grants. We will also explore how it can be acquired or challenged.

Understanding Parental Responsibility

It is defined in the Children Act 1989 and is a legal concept that is central to family law in England and Wales.

It encompasses the rights, duties, powers, responsibilities, and authority that a parent has for a child.

It is not about the rights of parents, but about their duties towards their children and it applies to all aspects of a child’s life, from education and health to welfare. This includes decisions about where the child lives, their education, and their medical treatment.

Where more than one person has parental responsibility, each of them can usually act alone, although important decisions such as changing a child’s school or surname, or taking them abroad, should be agreed. Parental responsibility cannot be given up or transferred to someone else, but a parent can arrange for others, such as a childminder or relative, to carry out some of it on their behalf.

It is a commitment that lasts until the child turns 18.

Who Has Parental Responsibility?

Not every parent automatically has parental responsibility.

Birth Mothers

In England and Wales, birth mothers automatically have parental responsibility, and this is the case regardless of the mother’s marital status.

Fathers Married to Birth Mothers

For fathers, the situation is slightly different. Married fathers automatically have it if they are married to the mother at the time of the child’s birth. This applies even if the couple later divorces. A father who marries the mother after the birth will usually also gain parental responsibility.

Unmarried Fathers: Named on the Birth Certificate

For unmarried fathers, acquiring parental responsibility is not automatic.

One way for an unmarried father to gain it is by being named on the child’s birth certificate.

This applies to births registered in England and Wales on or after 1 December 2003. Different dates apply in Scotland and Northern Ireland.

Unmarried Fathers: Not Named on the Birth Certificate

It is always advisable for unmarried fathers to seek legal advice to understand their rights and responsibilities. An unmarried father who is not named on the birth certificate can get parental responsibility by re-registering the birth with the mother so that he is named, by a parental responsibility agreement with the mother, or by a court order. If the court makes a child arrangements order saying the child lives with him, it must also give him parental responsibility.

Where parentage itself is in doubt or disputed, a DNA paternity test may be needed to establish that a man is the child’s biological father before the question of parental responsibility can be addressed.

Same-Sex Parents

In England and Wales, same-sex couples who are married or in a civil partnership are treated in much the same way as opposite-sex couples.

For female same-sex couples:

• A birth mother will automatically have parental responsibility.
• Her partner will also have it if they were married or civil partners at the time of the fertility treatment. If they were not married or civil partners, the second female parent can get parental responsibility by being registered on the birth certificate, by agreement or by a court order.
• If one parent is the parent and the other is a step-parent, the step-parent can acquire it through a parental responsibility agreement or a Court order.
• In cases of adoption, both parents in a same-sex couple gain it through the adoption process.
• Male couples who have a child through surrogacy gain it through a parental order or adoption.

It’s important for same-sex couples to understand their rights and responsibilities regarding children, and seeking legal advice can help clarify any questions or concerns they may have.

How to Acquire Parental Responsibility

Firstly, it’s important to outline who can apply.

• Biological fathers who are not married to the birth mother
• Step-parents: a spouse or civil partner of a parent who has parental responsibility
• A child’s second mother
• Anyone named in a child arrangements order as a person the child lives with, such as a grandparent, who gains parental responsibility while the order lasts

The Parental Responsibility Agreement

For unmarried fathers, step-parents, and second mothers, if the birth mother (and, for a step-parent, any other parent with parental responsibility) agrees, it  can be obtained via a Parental Responsibility Agreement. This involves completing the Parental responsibility Agreement: C(PRA1) form (C(PRA2) for step-parents), which must be signed and witnessed at a family court and then sent to the Central Family Court to be recorded. The court does not need to approve it. It is highly recommended to seek legal advice before submitting the forms to ensure both parties fully understand the rights, obligations and commitments they are undertaking.

The Order

If the birth mother does not agree to the Parental Responsibility Agreement then Court intervention may be required. The parent seeking parental responsibility must apply to the Court on form C1.

When making an Order, a court will treat the child’s welfare as its paramount consideration and consider various factors to determine the best interests of the child. Some of the key considerations include:

• The child’s welfare and well-being.
• The existing relationship between the parent seeking parental responsibility and the child.
• The ability of the parent to meet the child’s needs and make decisions in their best interests.
• Any potential risks or concerns that may affect the child’s welfare.
• The views and wishes of the child, depending on their age and maturity.
• Any relevant circumstances or evidence presented to the court.

These factors help the court assess whether granting the Order is in the child’s best interests and will contribute to their overall welfare and development.

The Impact of Adoption

When a child is adopted, the adoptive mother, father or both gains it as part of the adoption process.

The biological mother and the biological father lose their parental responsibility when the adoption order is made.

Grandparents and Guardians

A Special Guardianship Order is a court order that can be granted to grandparents or guardians in specific circumstances where the child’s parents are unable to care for them adequately. This order gives the grandparent or guardian parental responsibility for the child, allowing them to make important decisions about the child’s upbringing, and the special guardian can exercise it to the exclusion of the parents, but unlike adoption, this arrangement keeps a link between the child and his or her natural parent(s). The process for obtaining a Special Guardianship Order may vary depending on the situation, and it’s advisable to seek legal advice to understand the rights and responsibilities associated with this order fully.

A guardian appointed in a parent’s will, or by the court, has parental responsibility after the parent’s death.

Separated Parents and Differing Opinions

In cases of separated parents, parental responsibility remains with both parents even after separation but what happens when parents cannot agree? It’s crucial for separated parents to communicate and cooperate in the best interests of the child, even if they no longer live together. If there are disagreements, mediation or legal advice can help resolve issues while keeping the child’s well-being a top priority. If legal advice and mediation fail then Court intervention may be required which may result in a Child Arrangement Order, Specific Issue Order or a Prohibited Steps Order.

Can it be taken away?

It can be ended by an adoption order however, parental responsibility is not easily taken away. In England and Wales, a mother’s parental responsibility, and that of a father who was married to the mother at the birth, cannot be removed by the court except through adoption or a parental order. Parental responsibility acquired in other ways, for example by an unmarried father through the birth certificate, an agreement or a court order, can be ended by the court. The Court would need to be convinced that it is in the best interests of the child to remove parental responsibility, and such orders are rare. Situations where it  may be taken away include cases of abuse, neglect, domestic violence or other serious issues that could harm the child. Where the court will not remove parental responsibility, it can restrict how a parent exercises it, for example with a prohibited steps order. Local Authorities can obtain parental responsibility for a child via a Care Order, which allows them to limit how the parents exercise theirs, although the parents keep it, but for a private individual it’s a complex route to take.

Here to Help

The article above only provides a very basic overview so if you are seeking or refusing parental responsibility of a child it’s important to seek legal advice from a family law solicitor. Start with a fixed fee consultation by calling 020 8889 3319, or send us an enquiry.

Frequently asked questions

Does a step-parent have parental responsibility?

Not automatically. A step-parent who is married to, or the civil partner of, a parent with parental responsibility can get it by a parental responsibility agreement (form C(PRA2)) signed by everyone with parental responsibility, or by a court order.

Can a father get parental responsibility if he is not on the birth certificate?

Yes. He can re-register the birth with the mother so that he is named, make a parental responsibility agreement with the mother, or apply to the court for a parental responsibility order.

Can I remove parental responsibility from an absent father?

Only if he got it through the birth certificate, an agreement or a court order, and only if the court decides removing it is in the child’s best interests. This is rare and usually needs serious concerns, such as abuse. If he was married to the mother at the birth, it cannot be removed, but the court can restrict how he uses it.

What happens if two people with parental responsibility disagree?

They should try to agree, if necessary through mediation. If they cannot, either can ask the court to decide, usually by applying for a specific issue order or prohibited steps order on form C100.

Does a child arrangements order give parental responsibility?

A person named in a child arrangements order as someone the child lives with gets parental responsibility while the order lasts, and a father named in such an order must also be given parental responsibility. An order about spending time with a child does not automatically give it , although the court can give it.

How do I find out whether I have parental responsibility?

Check how it would have arisen: whether you are the mother, were married to the mother at the birth, are named on a birth certificate registered on or after 1 December 2003, or have an agreement or court order. If you are unsure, take legal advice.