Why is it essential for parents, carers and legal professionals to understand what Parental Responsibility means in UK law, and how does it affect decision-making and rights over a child’s upbringing?
What Is Parental Responsibility in UK Law?
Parental Responsibility is defined in law as set out in 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.
There is no exhaustive list as to what Parental Responsibility covers, but it includes making important decisions about a child and their life. Common examples are things such as deciding what name a child is known by; consenting to medical treatment; and deciding what school they attend. There can also be issues with respect to religion or other important decisions as to a child’s welfare that require the exercising of Parental Responsibility.
Who Automatically Has Parental Responsibility?
The mother of a child automatically obtains Parental Responsibility for the child at birth.
If a father is married to the mother at the time of the birth of the child then he will automatically obtain Parental Responsibility for the child too. The husband is assumed to be the child’s father as a matter of common law (a presumption that can be rebutted, if the mother and her husband know that the husband is not the biological father).
If the parents are not married to one another at the time of the child’s birth, their subsequent marriage would also confer Parental Responsibility upon the husband.
Once the child’s birth is registered and the father is named on the child’s birth certificate, this also has the effect of conferring Parental Responsibility upon the father, in addition to the mother.
How Can Parental Responsibility Be Acquired or Shared?
It is possible for Parental Responsibility to be acquired in other ways.
Parents can enter into a Parental Responsibility Agreement (C(PRA1)) to enable the biological father to obtain Parental Responsibility.
The biological father may also apply for a Parental Responsibility Order through the Family Court. He may also apply for a Child Arrangements (Lives With) Order which would confer Parental Responsibility upon the father if granted.
Step-parents may also obtain Parental Responsibility – there is a Step Parent Parental Responsibility Agreement form (C(PRA2)) which can be completed with the agreement of the biological parents.
The step-parent could otherwise seek a Parental Responsibility Order or seek a Child Arrangements (Lives With) Order as above.
It is possible for other persons and extended family members to apply for orders to confer Parental Responsibility – these are not limited to Child Arrangements (Lives With) Orders and include Special Guardianship Orders, the latter providing an elevated level of Parental Responsibility to the holder whereby their Parental Responsibility is often considered to “trump” the others who hold Parental Responsibility.
Parental Responsibility in Surrogacy, Adoption and Assisted Reproduction
A surrogate mother automatically has Parental Responsibility for a child at the child’s birth. The Parental Responsibility ceases only if the court grants a Parental Order which would transfer the legal parenthood to the intended parents. If a surrogate mother is married or in a civil partnership then her spouse/civil partner automatically acquires Parental Responsibility (but also loses this on the making of any subsequent Parental Order).
Successful applications for an Adoption Order or a Parental Order would enable the Applicant(s) to become the legal parent of a child and obtain Parental Responsibility. Each order has the effect of ending the birth parents’ Parental Responsibility.
An application for a Parental Order can be made solely and jointly, and applicants must have the child living with them and be permanently resident in the UK, Channel Islands or Isle of Man. Joint applications must be made by a married couple, civil partners or a couple living as partners.
For married same-sex couples where one of the parties is the child’s biological mother, they are treated in the same way as couples of the opposite-sex where the child has two female parents under the Human Fertilisation and Embryology Act 2008. In such circumstances the person who is not the child’s biological mother will be considered the “other parent” and hold Parental Responsibility for the child. This is the same for civil partners in such a situation. Where the child’s parents were not married or in a civil partnership, the other parent will assume Parental Responsibility by subsequent marriage, civil partnership or by adoption. Similarly, as above, they may also obtain Parental Responsibility by birth registration; Parental Responsibility agreement or an application to the court.
Where neither of the same-sex couple is the child’s birth mother, an application for a Parental Order or an application for an Adoption Order would need to be made in order for Parental Responsibility to be obtained.
What Decisions Does Parental Responsibility Cover?
There will be many day-to-day decisions that each parent will make for their children where they do not need to consult with the other or obtain their permission. To do so all of the time would cause all manner of practical issues and significantly restrict daily life.
There are certain major decisions that should always be discussed and agreement reached between those with Parental Responsibility – those can include things such as trips out of the court’s jurisdiction; what school the children attend; decisions about a child’s religion; relocating with a child to another part of the country or abroad; or attempts to change a child’s name, to give just some examples.
If parents disagree over major decisions like these then an application should be made to the court. There are effectively two main applications that can be made – an application for a Specific Issue Order and an application for a Prohibited Steps Order. The two often relate to the same issue, just coming at it from different perspectives: The Specific Issue Order would grant permission for a particular exercise of parental responsibility whereas a Prohibited Steps Order would prevent or restrict this. In real terms, if there was disagreement about what school a child attended, the person wanting to seek a particular school might apply for a Specific Issue Order whereas somebody wanting to prevent a child from attending a school that the other parent had already chosen, might apply for a Prohibited Steps Order. The two go hand in hand so it is common for parents to apply for both types of order depending on the circumstances.
Can Parental Responsibility Be Limited or Removed?
Parental Responsibility cannot be removed from a biological mother nor from a father who was married to the mother at the time of the child’s birth, save where an Adoption Order is made or a Parental Order.
The Parental Responsibility of an unmarried father may be removed and it is also the case that the Parental Responsibility that comes with a Child Arrangements (Lives With) Order to a non-parent is lost when that order lapses. This is not the case in respect of the biological father who assumes Parental Responsibility this way. A grandparent, or extended family member, for example, would lose the Parental Responsibility they hold for the child if the order confirming that they live with them ends.
It is only in exceptional cases that the court would consider limiting a parent’s Parental Responsibility and it has to be considered in the child’s best interests for an unmarried father’s Parental Responsibility to be terminated. The circumstances have to be extreme and cases are few and far between. For those unmarried parents it is possible for Parental Responsibility to be removed altogether, failing which in other situations the court can impose Prohibited Steps Orders that have the impact of preventing the exercise of a parent’s Parental Responsibility.
How Does Parental Responsibility Work in Child Arrangement Disputes?
As is referred to above, it is possible for certain persons to apply for Parental Responsibility Orders in their own right, and the making of a Child Arrangements (Lives With) Order also confers Parental Responsibility upon the holder for its duration (and beyond, for the biological father). Child Arrangements Orders will, however, set out the arrangements for how a child should spend time with his or her parents and so it is important to bear that in mind.
When court proceedings are not in play, it would be for parents to agree and make arrangements for their child and this would include agreeing how they spend time with each of their parents – a Child Arrangements Order would effectively supersede that exercise.
When a child lives with one parent but spends time with another, there is often no real difference noticed on the ground, compared with a child who may live with each parent. The arrangements of themselves do not alter the position with respect to Parental Responsibility but there is growing shift that courts are asked to recognise shared care arrangements by granting Lives With/Lives With orders so that each parent feels placed on an equal footing. Shared care need not be 50/50, and when such an order is made by the court it ensures that each party has the ability to take the child/children out of the court’s jurisdiction for up to one month for the purposes of a holiday without having to have the consent of the other – this is often a contentious issue otherwise as the parent holding a Lives With Order against the other with a Spends Time With Order is in a more advantageous position.
What Happens When Parents Live Abroad or Relocate?
When parents live abroad or relocate, this of itself does not impact upon Parental Responsibility. The court would expect that the consent of all those holding Parental Responsibility should be obtained prior to an attempt to relocate in or outside of the UK – it is important to note that this includes moving to another part of the country, not just relocating to the continent or further afield. Without consent being provided, an application for a Specific Issue Order could be made to the court to the parent left behind.
The court will consider what is in the child’s best interests as his or her welfare will be the paramount consideration.
As highlighted above, only those holding a Child Arrangements Lives With Order may take the child outside of the UK for a holiday for up to one month without having to seek consent of another person holding Parental Responsibility. Those holding a Special Guardianship Order may do so for a period of up to three months.
What Are Common Misunderstandings About Parental Responsibility?
Parents regularly misunderstand that Parental Responsibility is a responsibility as opposed to a right. Parental Responsibility was deliberately termed as such to include not only a right but authority and an obligation upon parents.
It is often mistaken that all parents automatically have the responsibility, or that it can be simply removed if one parent complains about the other’s conduct.
Similarly, it is mistakenly thought by many that if a non-resident parent is not financially contributing for their child (e.g. not paying child maintenance) then they don’t have a right to see their child. The court will swiftly confirm this is not the case, and there is no link between financial contribution for and spending time with a child. Parental Responsibility is the legal status afforded with respect to the child and is separate to the day to day arrangements for them. Whilst an order may be made by the Family Court that then confers Parental Responsibility upon a person by virtue of the determined arrangements, it is a separate entity.
There may be a situation whereby a child lives with one parent and spends no time with the other, but by virtue of the parents’ previous marriage or birth registration, for example, that means both parents hold Parental Responsibility and so key decisions have to be agreed between then for the child irrespective of how the child’s time is apportioned between them.
When Should Someone Seek Legal Advice About Parental Responsibility?
Seeking advice early is always really important. If you are thinking about choosing secondary school, planning a holiday abroad or thinking of relocating altogether to another area of the country or further afield, you should seek advice.
Applications to the family court for orders in respect of relocation in particular can often be convoluted and heavily resisted by the other parent. Family judges recognise that, in particular, an application to relocate can be one of the most serious applications that the family court is asked to consider – it is being asked to allow something that has huge ramifications for the parent who is being left behind. If you are thinking of a family holiday you will need to ensure that you have enough time to deal with the legal issue of having agreement to the trip, or the court’s permission, before you can go ahead.
Prior to any application to the court, you will need to consider mediation as a pre-requisite to starting family court proceedings and talking to a specialist family lawyer at an early stage can be key, to plan ahead and tackle the issue as soon as possible and find a solution for you moving forward.
If you would like to know more information or need advice then you can get in touch with our Family Law team or call us on 0345 450 5558.