Parental Responsibility – what is it and how do you get it?

What is Parental Responsibility?

If you have parental responsibility, your most important roles are to provide a home for the child and protect and maintain the child.  You’re also responsible for disciplining the child, choosing and providing for the child’s education, agreeing to the child’s medical treatment, naming the child and agreeing to any change of name and looking after the child’s property.

Parental responsibility for separated parents

If you have parental responsibility for a child but you do not live with them, it does not mean you have a right to spend time with your children. However, the other parent must include you when making important decisions about their lives.

You do not always need to get the consent of the other parent for routine decisions, even if they also have parental responsibility.

If it’s a major decision (for example, one of you wants to move abroad with your children) both parents with responsibility must agree in writing.

You can apply for a Specific Issue Order or Prohibited Steps Order if you cannot agree. A judge will then make a decision which is in your children’s best interests.

You must make sure your children are financially supported, whether you have parental responsibility or not.

You can get help to arrange contact with your children.

Who has parental responsibility?

Parental responsibility can be acquired by the following methods:

At birth

• where the parents were married to each other, or from 2 December 2019 civil partners of each other at the time of the child’s birth, they each have parental responsibility (‘married to or civil partners of each other at the time of the child’s birth’ has to be interpreted in accordance with the Family Law Reform Act 1987 (FLRA 1987))
• where the parents were not married to each other at the time of the birth, the mother automatically has parental responsibility and the father does not: there is provision for the father to acquire it.
• in relation to a child conceived after 6 April 2009 where the mother has a civil partner who is a parent pursuant to:
  • section 42 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) (relating to a woman who has assisted reproduction treatment and is at the time of that treatment a party to a civil partnership or in certain circumstances a void civil partnership), or
  • HFEA 2008, s 43 (relating to a woman who has assisted reproduction treatment and who agrees that that second woman is to be the parent of any resulting child)

the child’s mother and the other parent will each have automatic parental responsibility for the child

• normally no other person has parental responsibility for the child at its birth

Subsequent to birth

• After the child’s birth there is provision for others to acquire parental responsibility for the child.
  
  An unmarried father may acquire parental responsibility without court proceedings by:
  • subsequently marrying or, from 2 December 2019 becoming the civil partner of the mother
  • becoming registered as the child’s father
  • entering into a parental responsibility agreement with the mother
  • becoming a formally appointed guardian
• Parental responsibility may also be acquired by an unmarried father on the making of:
  • a parental responsibility order
  • a child arrangements order (CAO) in which the father is named as the person with whom the child is to live (formerly a residence order) in which case a separate parental responsibility order must be made
  • a CAO in which the father is named as a person with whom the child is to spend time or otherwise have contact with but is not named as the person with whom the child is to live (formerly a contact order), in which case the court must decide whether it would be appropriate, in view of the provision made in the order, for him to have parental responsibility and, if so, a separate parental responsibility order must be made.
• Subsequent marriage
  
  Provided that the child is under 18, by marrying or, from 2 December 2019 becoming the civil partner of the mother the father will automatically acquire parental responsibility.
• Registration of the father
  
  This applies only to relevant registrations made on or after 1 December 2003.
  
  A father may acquire parental responsibility following his registration as the child’s father.
  
  Re-registration can confer parental responsibility provided it falls within the statutory criteria:
  • where no father has been previously named
  • re-registration is with the mother’s consent

Re-registration following a declaration of parentage does not confer parental responsibility.

The court can, on an application by any person with parental responsibility or, with leave of the court, the child, order that the father shall cease to have parental responsibility. This position is different from that of a married father.

Parental responsibility acquired in this way dates from registration and not from birth.

• Guardianship
  
  A father may acquire parental responsibility if he is formally appointed as a child’s guardian, the appointment being made by the mother or the court. The appointment can only take effect after the mother’s death.

• Parental responsibility agreements
  
  A mother and an unmarried father may enter into a parental responsibility agreement, as a consequence of which the father will acquire parental responsibility. To be effective the agreement must be in the prescribed form and be recorded in the prescribed manner.

• An unmarried father may make a free-standing application to the court for a parental responsibility order.
  
  Such an application can only be made in relation to a child under the age of 18 and is not restricted by the fact that the child has reached 16.
  
  If the applicant’s paternity is disputed or there is doubt about it, that will have to be proved before the action may proceed.

When deciding whether to make a parental responsibility order the welfare of the child is the court’s paramount consideration.

The court must be satisfied that making the order would be better for the child than making no order at all.

The court is not obliged to have regard to the welfare checklist at ChA 1989, s 1(3), but may do so.

Although there may be other relevant facts to take into account, the following factors have been judicially accepted as material in deciding whether to make an order:

• the degree of commitment the father has shown towards the child
• the degree of attachment that exists between the father and the child
• the father’s reasons for applying for the order

The court should expressly mention all three factors in its judgment.

These requirements have been held to be a starting point, and even if they are satisfied the court still has an overriding duty to apply the paramountcy test and to decide whether the making of an order is required for the child’s welfare.

If you need advice in relation to Parental Responsibility or any other child related legal issue please contact us on the following:

Jslater-williams@keelys.co.uk | 01543 420011

mbell@keelys.co.uk | 01543 420031