Parental responsibility is an area parents often seek legal advice about. This blog aims to provide an understand of what parental responsibility is including who has parental responsibility for a child, how it can be obtained and whether it can be removed or restricted in any way.
What is Parental Responsibility?
Parental Responsibility, as defined under Section 3(1) of the Children Act 1989 is all the rights, duties, powers and responsibilities and authority that, by law, a parent of a child has in relation to the child and their property.
The scope of this includes, but is not limited to :-
- The duty to care for the child and meet their basic needs,
- Decisions about where the child lives,
- Decisions about education,
- Decisions about medical treatment,
- Decision about religion,
- Applying for or vetoing the child’s passport, and
- Applying for court proceedings relating to any of the above issues.
Parental responsibility will cease when the child reaches the age of 18 years, however it has been held that the older the child becomes the less extensive the parental responsibility will become.
In Hewer v Bryant [1969] 3 Al ER 578 Lord Denning stated parental responsibility
“…starts with a right of control and ends with little more than advice.”
This shows that the courts are hesitant to force decisions on a older child who is able to express their thoughts and feelings clearly.
When more than one person has parental responsibility for a child it is joint and equal. If there is a dispute over decisions then an application can be made to court.
A person with parental responsibility is not able to transfer this to another person, unless this is by an adoption order, which is a permanent decision.
Who has parental responsibility?
- A mother.
- A father who is married or in a civil partnership with the mother a the time of the birth.
- A father who marries the mother or enters a civil partnership with the mother subsequent to the birth.
- An unmarried father who is named on the birth certificate.
- Second female parents who were married or in a civil partnership at the time of conception.
- A person who has formally adopted a child.
- A person who has a child arrangements order or special guardianship order for the child to live with them (this can include grandparents, step parents or other family members who would not usually have parental responsibility for the child).
If you do not have parental responsibility then you may be able to acquire this.
How do I obtain parental responsibility?
The most common enquiry about obtaining parental responsibility is from unmarried father’s who are not named on the child’s birth certificate. They are often still required to pay maintenance for the child and may not be consulted on decisions relating to the child.
An unmarried father could obtain parental responsibility by re-registering the child’s birth, depending on whether the mother consents to this. The parents could also enter into a parental responsibility agreement.
If the mother does not consent to the father having parental responsibility the only option may be an application to court. The court can grant parental responsibility to an unmarried father by:-
- Making a parental responsibility order (a declaration of parentage can also be made to reflect the child’s identity), or
- Making a child arrangements order for the child to live with the father, where parental responsibility must be given, or
- Making a child arrangements order for the child to spend time with the father and determining it is in the child’s best interests for the father to also be granted parental responsibility.
If you are not a biological parent to the child parental responsibility can be given to you if this is necessary to meet the child’s welfare needs. The court can grant a Special Guardianship order to family member, step parent or close friends if the child is not able to live with the parents. This will provide enhanced parental responsibility, so in the event of dispute over decisions then the Special Guardian makes the final decision. A child arrangements order for the child to live with another person, such as step parent or grandparent would give the same level of parental responsibility as the other parents who had parental responsibility.
Can the court remove parental responsibility?
A common question we have is whether parental responsibility can be removed from the other parent. It is very rare that this would be granted by the court, and they can only do this in certain situations.
A mother’s parental responsibility is automatic and as such can’t be removed, with the exception ofan adoption order or parental order under the Human Fertilisation and Embryology Act 1990 being made.
If a father obtained parental responsibility by being married to the mother then there is no provision under the Children Act 1989 for this to be removed. This is an issue that was considered b the court recently in F v M (REV1) [2023] EWFC 5 where Hayden J commented that it was uncomfortable situation that a mother could not apply to remove a father’s parental responsibility simply because they were married at the time of birth, especially as there has been social change since the act was brought into force.
If a father has acquired parental responsibility, for example by being named on the child’s birth certificate it is possible for the court to terminate this but only in exceptional circumstances. Examples where the court may consider this include:-
- If the father has caused non-accidental injuries to the child.
- If the father has sexually assaulted the children
- Serious domestic abuse perpetrated by the father against the mother.
- If the father is misusing his parental responsibility impacting the child’s welfare.
Can the court restrict parental responsibility?
The court has powers to limit or restrict parental responsibility if this is necessary for the safety of the child or other parent. Orders restricting parental responsibility can be made if parental responsibility is not able to be removed.
The court can grant a prohibited steps order which prevents the named person doing certain things or making certain decisions. This can have a penal notice attached to it. If there is a risk of significant harm to the child or the matter is urgent it may be possible to obtain an order without warning the other party of the application in advance. These are known as without notice orders.
Examples of restrictions include:-
- Preventing one parent removing the child from the care of the other parent.
- Preventing one parent from removing the child from school or nursery.
- Stopping a parent changing the child’s name.
- Preventing a parent accessing the child’s medical records or school records.
- To prevent a named person having contact with the child.
- Preventing a child’s religion being changed.
Summary
In short there are many questions that arise in relation to parental responsibility. It is possible for this to be acquired, restricted and in some situations terminated. The court’s paramount concern will be the welfare of the child when making these important decisions.
If you feel you need further legal advice or you are considering making an application to court Ringrose Law offers regular free clinic or fixed fee appointments. Please contact our experienced Children Team on 01522 561020 or email