Parental responsibility is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has”. It is hard to imagine a more circular definition. In practice is means that someone with parental responsibility has a right to take part in major decisions in the child’s life, such as schooling and whether the child should move abroad etc. In addition, parental responsibility is defined as “rights of custody” for the purposes of the Hague Convention on Child Abduction, which applies in all European Union, many Western and some other countries. This means that someone can only take the child permanently out of England and Wales with permission of all other people with parental responsibility or with permission of the court.
Before considering parental responsibility, you need to be clear about who the legal parents of the child are according to English law, which is not necessarily obvious in cases where a child is born to same-sex couples or through surrogacy.
The following people have or may get parental responsibility:
The mother always has parental responsibility, provided she is the legal mother of the child.
The child’s father has parental responsibility:
- if he is married to the mother at the time of the birth;
under English law also if he marries the mother later on;
- if he is on the birth certificate for births registered in England or Wales after 1 December 2003;
- if he and the mother have signed a parental responsibility agreement, which is a prescribed form, and lodged it with the court; or
- if the court has made a parental responsibility order in the father’s favour.
If a court makes a child arrangements order in favour of a father who does not have parental responsibility, then
- if the child arrangements order provides that the child lives with that father (even for part of the time), the court must make a parental responsibility order in favour of that father; and
- if the child arrangements order provides that the child spend time or otherwise have contact with the father, the court must consider whether to make a parental responsibility order.
Of course a father can only get parental responsibility in any of these ways if he is the legal father, but not if he is only a the biological father through being a sperm donor or simply the mother’s boyfriend. There is a presumption that the mother’s husband at the time of birth is the father, but this can be rebutted through evidence, except in cases of artificial insemination.
Co-mothers (Non-birth Mothers - “Other Parents”)
In English law a woman who is not the biological mother of the child can be legally the other parent of a child if she is the mother’s same-sex partner in a lesbian relationship (see legal paternity after sperm donation). Such a woman has parental responsibility in a very similar way as a legal father. This does not apply to an adoptive mother or a woman who is the mother of a child after a parental order made after surrogacy. Such a mother always has parental responsibility, whatever the gender of the other parent.
The child’s “other parent” has parental responsibility:
- if she is in a civil partnership with the mother at the time of the birth;
- if she registers a civil partnership with the mother later on,
- if she is on the English or Welsh birth certificate;
- if she and the mother have signed a parental responsibility agreement, which is a prescribed form, and lodged it with the court; or
- if the court has made a parental responsibility order in her favour.
If a court makes a child arrangements order in favour of a co-mother who is a parent and who does not have parental responsibility, then
- if the child arrangements order provides that the child lives with that co-mother (even for part of the time), the court must make a parental responsibility order in favour of that co-mother; and
- if the child arrangements order provides that the child spend time or otherwise have contact with the co-mother, the court must consider whether to make a parental responsibility order.
Please check that the mother’s partner does indeed have the status of a parent in the first place. This only applies for children who were conceived artificially (not born) after 6 April 2009.
Child Arrangements Orders and Parental Responsibility
If the court makes a child arrangements order in favour of a person or persons providing the child lives with them (what used to be a residence order), they automatically have parental responsibility while that order is in force, even if they do not otherwise have parental responsibility. This is one of the two ways that a stepparent who is not married or the civil partner of the parent with whom the child lives could get parental responsibility.
Stepparents, i.e. the spouse or the civil partner of the father or the mother, can get parental responsibility by a similar parental responsibility agreement or by court order. This only works for spouses and same-sex civil partners and not for cohabitants. All parents who already have parental responsibility must sign the agreement. Therefore if the father already has parental responsibility and he refuses to sign, the mother’s spouse or civil partner would need to apply to the court for a parental responsibility order. The father’s (and the “second parent’s“) spouse or civil partner can of course also get parental responsibility in the same way.
If you and your partner are not married or civil partners and do not plan to change that, the only way for both to get parental responsibility is if the court makes a child arrangements order providing that the child shall live with both of you (what used to be a joint residence order).
Parental Responsibility Agreements
For all three parental responsibility agreements there are prescribed forms that can be downloaded from the internet:
There are full instructions about how to complete the form on the back of the form. Unmarried fathers, co-mothers and stepparents can lose the parental responsibility only by court order, but this is extremely rare.
Child Arrangements Orders for Time or Contact and Parental Responsibility
If a court makes a child arrangements order about time or contact (so, other than where the child should live) in favour of a person who is not a parent of the child (what used to be a contact order), it can also make an order for parental responsibility in favour of that person for the duration of the child arrangements order. This is another way to give parental responsibility to non-parents, such as partners or former partners of a parent.
Parental Responsibility Aquired Abroad
In addition to the ways to obtain parental responsibility as set out above, anyone who has acquired parental responsibility outside England and Wales while the child was habitually resident there keeps parental responsibility under article 16 of the 1996 Hague Convention on Parental Responsibility and the Protection of Children if it applies between that country and the UK.
It is of course always best to try to avoid court proceedings because the judge can only make an order, but cannot physically oversee the time a child spends with each parent. An order does not enforce itself and if someone does not comply with the order or takes a “work-to-rule” approach, matters can continue to be difficult. There will also be issues arising in the future of a child’s life where parents have to work together.
Mediation is an inexpensive way to find solutions outside the court system and it is particularly suitable to resolve issues about children. This is why it is compulsory for anyone who wants to make an application to the court for a child arrangements order to attend a Mediation Information and Assessment Meeting (MIAM) first (with some exceptions). Our support page has a wealth of resources for parents to help them to parent together successfully, nurturing their child.
For advice on your specific circumstances contact Andrea Woelke at Alternative Family Law: ring us on 020 7407 4007 (+44 20 7407 4007 from abroad) or us (stating your full name, the full name of the other person in your case and your telephone number on which we can call you).
Please note that we do not have a contract to take on cases on legal aid. To check if you may be able to get legal aid please go to this government website and contact a solicitor who has a legal aid contract.
10 February 2015 by Andrea Woelke