Parental Responsibility

As an experienced family lawyer, I have found a common thread for parents involved in relationship breakdown – their shared desire to put the best interests of their children first. When a relationship breaks down there are many issues which parents must deal with regarding the arrangements for their children. These include key decisions relating to the child’s upbringing, such as deciding what school their child should attend, what medical treatment they should receive and matters relating to their religion. Parents must also decide the practical day-to-day arrangements concerning where the child will live and how much time they will spend with each parent. An issue often connected to the arrangements for children whose parents have separated relates to the legal concept of “Parental Responsibility” and this will be the focus of today’s article.

What is Parental Responsibility? Parental Responsibility is defined in English family law 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.” Such rights exist for the benefit of the child and not for the benefit of the parents.

Whilst there is no comprehensive list of parental rights laid down in English family law, in reality Parental Responsibility allows parents to make important and sometimes life-changing decisions concerning their child’s upbringing, including for example:

• Deciding the child’s name
• Deciding what medical treatment the child should or should not receive
• Deciding what religious upbringing the child shall receive
• Deciding where the child should go to school
• Deciding where the child should live
• Deciding whether the child should move abroad
• The arrangements for dealing with the child’s property and finances

Who has Parental Responsibility? When parents are married to one another at the time of their child’s birth, both the mother and father will each automatically have Parental Responsibility. If parents are unmarried when their child is born then only the mother has automatic Parental Responsibility. The father in this situation does not have it, although he can later acquire it.

How can an unmarried father acquire Parental Responsibility? An unmarried father can acquire Parental Responsibility after his child has been born in any one of the following six ways:

1. By registering his name on the child’s birth certificate

For children whose births are registered on or after 1 December 2003 the unmarried father will acquire Parental Responsibility if he is named as the father on the child’s birth certificate. For registrations before this date, the unmarried father can ask for the birth to be re-registered if his name did not originally appear on the child’s birth certificate. However, for this to occur the mother must give her permission for the re-registration and there must have been no father previously named on the child’s birth certificate. If this does not apply then the unmarried father will need to consider the further options outlined below. Unmarried fathers who acquire Parental Responsibility in this way can have their Parental Responsibility terminated by way of a subsequent Court Order which makes their position very different to that of married fathers.

2. By marrying the mother

Provided the child is under 18 years of age, the unmarried father will acquire Parental Responsibility if he subsequently marries the mother. Once the father has acquired Parental Responsibility in this manner, he will not lose it in the event of him and the mother later divorcing. It appears that Parental Responsibility acquired in this way cannot be ended by way of a Court Order either.

3. By entering into a Parental Responsibility agreement with the mother

An unmarried father will acquire Parental Responsibility if he and the mother enter into a Parental Responsibility agreement. This is a relatively straight forward legal form which must be signed by them both, be witnessed by a court officer (who cannot be a solicitor), and it must be filed at the local Family Court. A separate form is required for each child. There are a number of things that must be done in order for the agreement to be effective and it is important that both parents take separate legal advice before signing. A Parental Responsibility agreement will automatically end when the child reaches 18 or if the child is adopted sooner. The agreement can also be brought to an end by way of a Court Order.

4. By applying to the Court for a Parental Responsibility Order

When the mother will not agree to enter into a Parental Responsibility agreement and all other options are exhausted, then the unmarried father can apply to the Court for a Parental Responsibility Order. To do this, the child must be under 18 years old and there are a number of considerations the Court must take into account when deciding whether to make such an Order. Although no commencement date has yet been confirmed, there will be new legal provision coming into effect in autumn 2014 which will be relevant when fathers are applying for a Parental Responsibility Order or indeed when an application is made for the Court to terminate Parental Responsibility. The new provision will state that the Court should presume, unless the contrary is shown, that the involvement of a parent in the child’s life will further the child’s welfare.

If the mother disputes the father’s paternity or there is doubt about it then this will have to be proved first with a DNA test before the Parental Responsibility Order can be made.

Parental Responsibility Orders are generally awarded to committed fathers unless doing so would put the child’s welfare at risk. The Court will consider the degree of attachment between the father and child, together with the reasons behind the father’s application.

A Parental Responsibility Order will automatically end when the child reaches 18 or if the child is adopted earlier. The Order can also be terminated by a subsequent Court Order.

5. Child Arrangements Order

Where the Court makes a Child Arrangements Order and the unmarried father is named as the person with whom the child shall live (previously known as a Residence Order), then he will acquire Parental Responsibility even if he has not applied for it separately. In such circumstances, the Court will make a separate Parental Responsibility Order in addition to the Child Arrangements Order.

If the Court makes a Child Arrangements Order providing for the unmarried father to spend time with the child or have contact with them (previously known as a Contact Order) then the Court must consider whether it would be appropriate for the father to acquire Parental Responsibility. If it is considered appropriate then a separate Parental Responsibility Order will also be made.

6. Formal appointment as the child’s guardian

Finally, an unmarried father can acquire Parental Responsibility if he is formally appointed as the child’s guardian. Either the mother or the Court can appoint him as the child’s guardian, and this will take effect upon the mother’s death.

Parental Responsibility and same-sex relationships

Parental Responsibility also applies in same-sex couples. However, this is not covered in today’s article as it is a more complicated area which depends on how the child was conceived and in what circumstances.

Can Parental Responsibility be acquired by people other than the child’s parents? Parental Responsibility is not limited to the child’s parents and in certain circumstances it is possible for third parties to acquire it, such as:

• Step-parents
• Guardians
• Those appointed as special guardians
• Local authorities in care proceedings
• Those in whose favour a Residence Order is made
• Those granted an Emergency Protection Order
• A husband and wife in whose favour a Parental Order has been made under the Human Fertilisation and Embryology Act 2008
• Adopters
• The Adoption Agency and prospective adopters when a child is placed for adoption
• The Court in wardship proceedings

Can Parental Responsibility be terminated and when does it end? No mother and no father married to the child’s mother at the time of the child’s birth or subsequently can have their Parental Responsibility terminated by a Court Order. This means they will retain Parental Responsibility until:

• The child’s death
• The child’s adoption
• The child attains the age of 18 years

In the case of unmarried fathers and other individuals who have acquired Parental Responsibility, it is important to note that Parental Responsibility is neither automatic nor permanent. It is possible for an unmarried father’s Parental Responsibility to be terminated by the Court in certain circumstances. Although there are few reported cases when the Court has taken the step of terminating a father’s Parental Responsibility, examples of when it has been decided to be in the child’s best interests to do so include situations where the child and family need protection from serious emotional and physical harm. Generally, however, the Court will be slow to terminate Parental Responsibility.

If you are unable to reach an agreement with your partner or former partner in relation to the arrangements for your children, including parental responsibility issues covered above, then please contact the Thompson Smith and Puxon Family and Divorce team on 01206 574431 or by email at info@tsplegal.com.