Parental Responsibility

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 and most Western 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.

The mother always has parental responsibility.

Below you will find information about adults other than the mother, whether they have parental responsibility and, if not, how they can acquire it.

fathers,
non-birth mothers (“the other parent”),
people with a residence order in their favour and
stepparents.
There is also information about parental responsibility agreements.

Fathers

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.

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.

Non-birth Mothers (“Other Parents”)

In English law a woman can now be legally the parent of a child, who is not the legal mother of the child if she is the mother’s same-sex partner (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 has always parental responsibility. 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 UK 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.

Residence Orders and Parental Responsibility

If the court makes a residence order in favour of a person or persons they automatically have parental responsibility while that residence order is in force, even if they do not otherwise have parental responsibility. This is the only way that a stepparent who is not married or the civil partner of the parent with whom the child lives could get parental responsibility.

Stepparents

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 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 do so, the only way for both to get parental responsibility is if the court makes 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.

It is always best to try to avoid court proceedings of course because the judge can only make an order, which those involved still have to comply with. 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. 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 Alternative Family Law: ring or email us.

October 2010

Alternative Family Law

Children

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