Parental Responsibility in the UK

What is Parental Responsibility?

Parental Responsibility in family law is defined under section 3 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.’

The term ‘parental responsibility’ attempts to put focus on the parents’ duties towards their child rather than the parents’ rights over their child. With the overall emphasis being on the child’s care and wellbeing.

The most important roles, are to:

• Provide a home for the child.
• Protect and maintain the child.

Parental responsibility also means having the power to make important decisions in relation to a child. This can include:

• Educational decisions. For example, determining the child’s education and where the child goes to school.
• Choosing or changing the child’s name.
• Appointing a guardian in the event of a death of a parent.
• Agreeing certain medical decisions and having access to a child’s medical records.
• Whether the child can be taken abroad, or away for extended periods of time.

If these decisions cannot be agreed between the parents, then there are several options to try and resolve this for example, family mediation or other non-court dispute resolution. Further information regarding mediation together with other forms of Non-Court Dispute Resolution can be found in the blog ‘Dispute Resolution – what is it and what are my options’. Or alternatively you can apply to the court for an Order.  More information on Orders below.

Who has parental responsibility?

The mother who gives birth to the child, automatically has parental responsibility for the child from birth. Whether anyone else has parental responsibility will depend on the circumstance around the conception of the child:

Children conceived via intercourse:

If the child is conceived via sexual intercourse or ‘natural insemination’, the biological father will always have parental responsibility and will be considered the legal father. Further, this is irrespective of any agreement reached between the parents.

If a legal father is named on the child’s birth certificate, he will also have parental responsibility giving him additional rights regarding decision making.

Children conceived via artificial insemination/assisted reproduction at UK fertility clinics:

A surrogate mother, regardless of whether they are genetically related to the child, is the child’s legal mother. No other person is the legal mother, including anyone else who provides the eggs (whether this is a donor or your partner).

However, if two female parents have children through fertility treatment, the mother’s female partner is treated in the same way as a father. She has parental responsibility if she is married to or in a civil partnership with the mother at the time of her treatment. (She can also acquire parental responsibility in the same way that a child’s father can).

How can parental responsibility be obtained?

It is possible to obtain parental responsibility by agreement with all others who already have it if you are either:

1. A step-parent;
2. The biological father of the child, but you are not named on the birth certificate; or
3. The birth mother’s same sex partner if the child was conceived in a UK clinic and all the relevant forms are signed to grant the partner’s legal status as a parent.

Parental Responsibility Agreements:

As mentioned above, it is open to other individuals to acquire parental responsibility. For instance, a step-parent, a new partner or a father who is not named on the birth certificate. This could be done with the consent of the child’s parent or parents, who would need to sign a parental responsibility agreement.

A parental responsibility agreement is a standard form, found here: C(PRA1) Parental responsibility agreement (publishing.service.gov.uk).  Which must be completed and signed by all those with parental responsibility and those wanting to acquire parental responsibility. Once signed and witnessed the form must be lodged with the court.

The court will then record the agreement and retain the original form. The copies will be stamped with a seal from the court and sent back to every person with parental responsibility who has signed the Agreement Form. Once a Parental Responsibility Agreement has been made, it can only be terminated if ordered by the court.

Parental Orders/Parental Responsibility Orders:

If parental responsibility cannot be granted by way of an agreement, in certain circumstances an application to the court can be made for a Parental Responsibility Order. The court will take into account the following:

• The welfare of the child.
• Whether the individual is committed to a relationship with the child.
• Any potential issues that the order could cause.
• The opinion of any individual who has parental responsibility for the child.

Parental responsibility of the child can also be passed to the ‘intended parents’ via a Parental Order, which can be obtained from the courts after the child is born. More information on parental orders and surrogacy can be found here.

Can anyone else have parental responsibility?

Parents can ask someone else to carry out their parental responsibility on a temporary basis. This can be acquired in one of the below ways:

• By applying to the court for a Child Arrangements Order.
• By being appointed guardian by a parent with parental responsibility.
• By adopting a child.
• By applying for a Special Guardianship Order.

Appointing a guardian

If you have parental responsibility, you can choose someone to be a legal guardian of your child after death. This is because the child’s grandparents, siblings and guardians wouldn’t automatically become their guardian in the first instance. This decision would need to be decided by a court, unless that individual has been named in either a Will or in writing (as long as it is signed and dated).

Can a parent lose parental responsibility?

As above, parental responsibility can only be terminated by the court (which is very rare). This would only be considered in instances where the behaviour of the parent in question poses a threat to the child, when the parent is withholding consent for certain medical treatments or where the parent has become estranged from the child.

In instances where the father is married to the child’s mother, the court cannot remove his parental responsibility. Although, it can limit it. This can often be achieved by way of a prohibited steps order, to prohibit him in making any steps to exercise parental responsibility.

Alternatively in some circumstances it may be necessary to apply for a specific issue order, which looks at a specific question about how the child is brought up. For example, the child’s school or religion if unagreed by the parents.

In summary most parents automatically acquire parental responsibility, in brief as follows:

• Birth mothers.
• Fathers married to the birth mother prior to the child being born.
• Unmarried fathers who are registered on the birth certificate.
• Civil partners and partners of birth mothers registered as the child’s legal parent on the birth certificate.

Whilst this article will hopefully provide some useful information regarding parental responsibility there are other important factors to consider. Therefore, if you need specific advice regarding such a matter then please get in touch with us to arrange a consultation with one of our specialist family lawyers.

Beth Watson is a Paralegal in our Brighton office.