Who Has Parental Responsibility
The mother of a child always has parental responsibility. This can only be removed if a child is adopted or placed for adoption under a a placement order.
The married father of a child has parental responsibility (whether he was married to the mother of the child before or after it was born).
If the child’s birth was registered before 1st December 2003: the unmarried father of a child will have parental responsibility if he and the mother have signed a parental responsibility agreement (and completed the necessary formalities – see later in this document for more information) or the court has made an order saying that he should have parental responsibility.
If the child’s birth was registered after 1st December 2003: the unmarried father will have parental responsibility if he is named as the father on the birth certificate. This can include situations where the birth is re-registered to include the father’s details if they were not there before but ironically not to include unmarried father’s who were already on the birth certificate before 1.12.03. The unmarried father cannot have his name put on the birth certificate without his consent.
A step-parent, provided that all those with parental responsibility agree in writing (similar to the parental responsibility agreement for unmarried fathers).
A civil partner can acquire parental responsibility with the agreement of the other partner if they have PR. If the child’s other parent has PR they must agree as well. Civil partners can also acquire PR if they have a residence order or on adoption.
Anyone who has a residence order (an order saying that the child should live with them) as long as the order is in force.
The local authority if a care order has been made.
The adoption agency when a placement order is made and prospective adopters when a child is placed with them following a placement order being made.
Someone who has been appointed as the child’s legal guardian (not the same as a guardian appointed to represent the child in court).
The holder of a Special Guardianship order.
Can more than one person have parental responsibility?
Yes: for example -
Parents who are married both have parental responsibility.
A local authority is given parental responsibility when a care order is made but the mother (and maybe the father) will continue to have parental responsibility along with the local authority. The local authority will be in the driving seat, however, and can override the wishes of the parents if they cannot reach an agreement. The same applies once a placement order is made: the local authority can determine the extent to which a parent or guardian or prospective adopters may exercise parental responsibility. At this point, the local authority, parents / guardians and the prospective adopters all share parental responsibility.
A grandmother may have an order saying a child should live with her so she gets parental responsibility. The mother (and maybe the father) will still have parental responsibility.
A Special Guardian will share parental responsibility with the parents but can generally exercise it to the exclusion of anyone else. An exception applies in circumstances where the law provides that the consent of more than one person with PR is required (for example, the sterilisation of a child). The Special Guardian may not give consent to adoption or placement for adoption and may not change the child’s surname or take them out of the UK for longer than 3 months without the consent of everyone with PR or permission from the court.
Where more than one person has PR each of them may act alone in meeting that responsibility unless the law specifically requires joint agreement such as over a change of surname.
What does parental responsibility mean?
Parental responsibility is defined in 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’.
Cases decided by the courts have given us some idea of what this means.
- making choices about a child’s religion;
- making choices about a child’s education;
- deciding what name a child should be known by;
- making decisions about a child’s medical treatment (including blood tests);
- asking for copies of records about the child’s medical treatment and education;
- disciplining the child;
- deciding where a child should live and who a child should spend time with;
- deciding whether a child should be able to go out of the country, perhaps for a holiday;
- looking after the child generally;
- deciding whether any information about the child should be made public;
- making decisions about what should happen to any property belonging to the child
- deciding whether someone else should look after a child or make decisions about them;
representing the child in legal proceedings; - making other slightly less usual decisions about a child such as whether a sixteen year old should be allowed to get married, making arrangements for a child’s funeral, deciding whether a child should be adopted.
It also carries with it the automatic entitlement to make certain applications to the court (for example for contact or residence) to be a respondent to care proceedings. However, even without PR, an unmarried father is entitled to reasonable contact to a child in care and is able to make an application to the court for permission to apply for orders or to join in care proceedings.
How long does parental responsibility last?
Parental responsibility only lasts as a legal concept until the child is 18 or if the child marries between 16 & 18, on marriage or until an adoption order is made.
A mother will always have parental responsibility until the child is 18 unless an adoption order is made.
A married father is in the same position.
An unmarried father’s parental responsibility may be ended by a court order or as a result of an adoption or placement order. The same applies to any other person who acquires PR by PR agreement or order. The child or any other person with PR may apply to terminate PR.
A local authority will lose parental responsibility as soon as a care order is ended unless it has a placement order.
If a residence order is made, parental responsibility only lasts as long as the residence order.
A Special Guardian will lose PR if the order for special guardianship is discharged.
How does the court decide whether a father should be given parental responsibility?
In any decisions about what is right for a child, the welfare of the child is paramount.
The court must consider the ‘welfare checklist’. It must consider:-
- the ascertainable wishes and feelings of the child in light of his age and understanding;
- the physical, emotional and educational needs;
- the likely effect on him of any change in his circumstances;
- his age, sex, background and any characteristics of his which the court considers relevant;
- any harm which he has suffered or is at risk of suffering;
- how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, of meeting his needs;
- the range of powers available to the court under the Children Act.
The court must also consider:-
- whether the father has a genuine child-centred motive for wanting it;
- whether the father has shown a commitment to the child (for example, by keeping up contact and a relationship with the child);
- whether there is a significant relationship between the father and the child.
Some facts are usually more important than others when looking at whether a father should have parental responsibility.
For example, a father who does not pay any money towards the child’s maintenance will not necessarily be refused parental responsibility just because of that. He may not be able to pay, because he is on income support. The parents may be in the process of a divorce and the money side of things has not been sorted out. Sometimes a mother has refused to accept any money from the father. Very often parents get locked in a vicious circle – one parent will not pay, the other parent will not allow contact. The courts try to ensure that money and children are kept separate.
The fact that a father has not had contact for a long time may go against him. However, he might be able to show the court that he was asking the mother to have contact and she was refusing. He may not have known that he had a child at all. He may have been mentally ill and not in a position to ask for contact. It will go against him if he cannot show a good reason to the court. But PROs have still been made even when the father is not having any contact at all.
A father who has been violent to the mother may be on thin ice, especially if the child knew about it. All will depend on his attitude about his behaviour. A father who can show that he is sorry for his behaviour and has made some efforts to change will be in a stronger position. For example, he might have been violent partly because he was taking drugs or drinking heavily. If he has sorted himself out, the court may accept that he is now a reformed character. A father who cannot be trusted to behave in a reasonable way when dealing with a mother is not likely to get parental responsibility.
A father who has been violent to a child, or has sexually abused a child is not very likely to get parental responsibility.
The reality is that fathers who apply for parental responsibility will normally get it, unless they have done something really outrageous.
Here is what the Judges have said in favour of parental responsibility:
Lord Justice Balcombe (in Re G (A Minor) (Parental Responsibility Order) 1994 1 FLR 504
“The purpose of a parental responsibility order is to give the unmarried father a ‘locus standi’ in the child’s life by conferring on him the rights which would have been automatically his by right had he been married to the mother at the time of the child’s birth. The making of such an order would enable the father to contribute to the promotion of his daughter’s welfare and to play the natural part of her father in her future, although it did not give the father any rights of either residence or contact; and in the present case, the child remained in the care of the local authority, with contact being at its discretion.”
Lord Justice Wall (in Re S (Parental Responsibility) 1995 2 FLR 648)
“There is another important emphasis I would wish to make. I have heard up and down the land, psychiatrists tell me how important it is that children grow up with a good self-esteem and how much they need to have a favourable positive image of the absent parent. It seems to me important, therefore, wherever possible, to ensure that the law confers upon a committed father that stamp of approval, lest the child grow up with some belief that he is in some way disqualified from fulfilling his role and that the reason for the disqualification is something inherent which will be inherited the child, making her struggle to find her own identity all the more fraught”
Here are some examples of cases when PR was refused:
- Re M (Contact: Parental Responsibility) [2001] 2 FLR 342 : it would be too stressful to mother and undermine her ability to care for their child. The child was severely disabled, with cerebral palsy affecting all 4 limbs, virtually blind & suffered from seizures. The relationship between the parents was highly acrimonious. The father accused mother’s new partner of sexual abuse without any foundation and violence. The risk was that he would misuse PR;
- Re J M (A Child) (Parental Responsibility) sub nom M v M [1999] 2 FLR 737: father was effectively incapable of exercising PR. Having had a motorbike accident resulting in brain injury he had an IQ of 54 and severely impaired memory. He also threatened to kill the mother and take the child away from her. Although he could show commitment and attachment, he was not capable and the risk could not be contained because of his inability to understand the concept of PR and the repercussions of its misuse;
- Re H (Parental Responsibility) [1998] FLR 855: the father had injured his child with extensive bruising to the body including the child’s penis and had bruised another child by hitting him. His behaviour was described as cruel with an element of sadism;
- Re P (Parental Responsibility) [1998] 2 FLR 96: father, aged 78, was found to be in possession of obscene photographs of children. He had met the mother when he was in his 60s and she was 15. He also made false allegations of sexual abuse and had videoed the child while he was encouraging her to talk about it;
- Re P (A Minor) (Parental Responsibility) [1997] 2 FLR 722: father in prison for a long sentence following a string of robbery offences.
What does sharing parental responsibility mean in practice?
Generally speaking an individual person with parental responsibility can make decisions about the child on their own, if need be.
In fact, there are also many decisions which may be made by someone who is simply looking after a child. The Children Act says that any person who has care of the child (which may be a child minder, relative, teacher etc) may do what is reasonable in all the circumstances for the purpose of safeguarding or promoting the child’s welfare. This is subject to the need to comply with any court orders or other legal restrictions but it means that a responsible adult can make emergency decisions on behalf of a child even if the parent or parents cannot be consulted. Despite this, in practice, a carer may find it difficult to act alone – hospitals, for example, will be careful to ensure that parents are involved before any major treatment decision is made.
There are a few things which can only be done with the agreement of every individual with parental responsibility. You may not change a child’s name, consent to a child’s marriage or consent to a child being adopted without specific agreement between everyone with parental responsibility. You may not take the child out of the country to live (although if you have a residence order, you are allowed to take the child away for a holiday for up to 4 weeks without the specific agreement of anyone else with parental responsibility.
A non-parent with parental responsibility (eg a grandmother or stepfather with a residence order or Special Guardian) may not consent to adoption or appoint a guardian for the child in the event of his death.
If a court order has been made, everybody with parental responsibility must do whatever the court orders. This takes priority over anything else – in other words if the court says the child should go to such and such a school, it is not up to the mother to change that unless she goes back to ask the court to make a different order.
If the local authority has parental responsibility because of a care order it has the power to determine the extent to which a parent or legal guardian may meet his parental responsibility for the child. In other words, the local authority’s decision is final. If there is disagreement over contact, however, the parent can make an application to the court. If there is disagreement over other issues, there may be other legal remedies but this would require specialist legal advice.
If parental responsibility is shared it is a good idea to consult or at the very least inform the other party if you are about to take a major step in a child’s life such as decide which school the child should go to. Strictly speaking, you can act alone but if the other party objects you may find yourself on the receiving end of an application to the court. The more information you share the less likely there is to be an unnecessary disagreement.
Yes, but what does it really mean in practice?
This question is best answered by giving a few example of situations in which parents trying to share parental responsibility do not agree about the way a child should be brought up.
In most cases, the court can be asked to make a decision when parents cannot agree.
In most cases, the court will give very serious consideration to the wishes of the parent who is the main or primary carer.
Ordinary everyday decisions about what a child should eat or who a child should spend time with will generally be assumed to be down to the parent with whom the child is with at the relevant time. The court will only interfere if the decision of that person is going to cause the child some harm.
For example, a mother may try to make sure that a child has a varied diet and eats vegetables. Father, who maybe does not see the child very often, maybe is not a good cook or does not have good cooking facilities etc wants to take the child to Macdonalds. A court is unlikely to interfere unless there is a serious problem such as a food allergy.
The non-resident parent may want the child to spend time with his grandfather. The mother may not like the grandfather. The court is only likely to interfere if the child is at some sort of risk.
The court can also consider making other orders to ensure the smooth running of the child’s relationship with his parents. For example, it could say there should be a contact order to father, with a condition that father does not bring the child into contact with the grandfather either at all or unless the father is present, depending on the circumstances and the harm that the child might suffer if the contact order is made. Conditions to orders can be very specific. They could include:
- the child is not to be brought into contact with person X;
- the child is only allowed to be in contact with person X if another responsible adult is present;
- the child is not allowed to be taken to place Y;
- the child is not to be given certain foods;
- the parent having contact must inform the mother if a certain event happens such as a medical emergency;
- the parent having contact must supply the other parent with a telephone number;
- the parent having contact must tell the other parent where the child will be sleeping during overnight contact;
- the parent with whom the child lives must tell the other parent about significant school events such as parents’ evenings;
- the parent with whom the child lives must keep the other parent informed about medical appointments etc.
This list is endless.
The court can also make other orders under section 8 of the Children Act (residence orders, contact orders, prohibited steps orders and specific issue orders. For example, an order could be made saying that the child should go to a particular school or should not be taken out of the country.
The court is unlikely to intervene in relation to relatively minor issues about which parents commonly fall out. However, the smooth running of family relationships after adults have separated is not going to be assisted if you act provocatively. It may be tempting to allow the child to have a skinhead haircut or have their ears pierced but unless you have cleared this with the other parent you run the risk of an argument at the very least or a refusal to allow contact.
It is advisable to consult or inform the other parent before you introduce a child to your new partner, allow the child to see a controversial or slightly adult content film, make any major purchases (such as a computer) or start the child on a special diet or course of medication. These may seem minor things but they have consequences for both parents. For example, if a mother knows that a child is about to meet a new partner, she can help prepare the child for the meeting and hopefully reassure the child that this is okay with her. If you do not consult about major purchases both parents may end up buying the same thing. You also need to consider where the child is going to keep something like a computer. It may be tempting to have it at your home but maybe the child would like to have it at their main residence. The solution could be to buy a laptop.
My child’s father has asked for parental responsibility: should I agree?
Mothers are often very anxious about what it means for a father to have parental responsibility. Just to give a few examples:
• Will the father interfere with her day-to-day life looking after the child by stopping me from dressing the child the way I want or feeding the child in a particular way?
• Will the father be able to stop me from doing something for the child that I want to do, such as bringing the child up as a Catholic or Muslim, or sending him to a private school or particular local school?
• Will the father be able to get access to school reports or the child’s medical records?
• Will the father be able to introduce the child to his new partner?
In considering the father’s application a mother should think through the following points:
- the norm is for a father to be given parental responsibility unless he has behaved extremely badly towards mother or the child, has no relationship with the child, is really only making the application as a way of maintaining contact with the mother, is mentally ill in such a way that he could not exercise parental responsibility;
- a father is rarely refused parental responsibility simply because he has paid no maintenance (unless it is part of a wider picture showing lack of commitment);
- a court will always look to see if it can make other orders which help overcome the mother’s anxieties, for example, by making orders under section 8 (eg residence, contact, specific issue or prohibited steps orders) or by attaching conditions to orders);
- for example, if a father accepts that the child should live with the mother because she is a good mother, it can be helpful if the court makes an order stating this, and recording that father consents. This can help the mother to realise that father is not ‘trying to take the child away from her’ or criticising her in some way.
- ‘Responsibility’ is not seen by the courts in exactly the same way as its everyday meaning – the fact that a father is rather immature or not terribly reliable, or has had an affair will not be seen by the court as irresponsible in the usual way people use the word. A parental responsibility order tends to be seen by the court as a way of recognising a father’s status in the child’s life rather than a statement that he is a ‘responsible’ father;
- one of the reasons that fathers are given parental responsibility, even if they have not always co-operated well with the mother is that at the end of the day the court knows that disputes about particular aspects of parental responsibility are usually decided in favour of the person with primary care;
- a father without parental responsibility has (at the moment) no automatic right to be involved in any court proceedings with regard to the child being taken into care or being adopted – one of the reasons why courts think it important for a father to have parental responsibility.
The real point to consider is – will it really make a difference on a day-to-day basis? Will it cause difficulties that you either have to put up with anyway or ought to?
Non-resident parents have a lot of separate rights, for example, under the Human Rights Act, by their ability to make an application to the court for orders about the child’s upbringing, by their right to have certain information from schools and doctors etc.
It is a fairly rare situation where a court would say that shared parental responsibility cannot be made to work.
A resident parent should also take account of certain realities. If parents cannot agree about something, will they really take the dispute to the court?
This will be affected by a number of points, including, for example, MONEY. Can the non-resident carer afford to be constantly referring disagreements to the court? How easily can they take time off work to go to court? How likely is it that the non-resident parent would be successful if they did apply to the court? Does the non-resident parent really want to have an argument in court (as opposed to over the telephone) about a relatively small point? Is there some other way of avoiding arguments about small issues or reassuring both parents? For example, is there a helpful third party such as a grandparent or family friend who can help negotiate smaller points?
Another reality check: even if a parent does not have parental responsibility, this does not stop them making an application to the court to have contact, or to challenge the decision of the parent with primary care.
Consider whether in all those circumstances it really makes any difference if the non-resident father has parental responsibility?
Think very hard about the reasons for objecting. How would they sound as tabloid headlines? What would a grandmother or best friend say? How much is mother’s view influenced by the nature of the adult relationship and break up? Are you simply using the PR issue as a bargaining chip? Is there really a child-centred reason for refusing PR? There aren’t very many.
What will parental responsibility give a father that he doesn’t already have?
Some thoughts and a brief answer – maybe not a lot.
A father without PR already has the right to apply for permission to make section 8 applications ie for contact, residence, specific issue orders or prohibited steps orders. He can apply in care proceedings to become a party, and this is almost never refused.
The court is very unlikely to deny you that permission if you have a genuine concern about the way the child is being treated.
For example, if a mother with care is denying information about or contact to the child applications can be made to the court as above.
A mother may feel that she cannot have a reasonable conversation with father because of the circumstances surrounding your separation. She may, rightly or wrongly, see him as an irresponsible father.
The mother may simply not understand what sharing parental responsibility will mean on a day-to-day basis and may need to take legal advice.
Sometimes the issue of parental responsibility is seen as a bit of a footnote to other major decision such as where should the child live. It may be very difficult for the mother to consider the question of parental responsibility before the main issue has been decided.
The mother may need to hear from father that her role in the child’s life is not basically challenged – for example, that it is agreed that the child should live with her and that it is acknowledged that she is a good mother.
It’s not a question of giving up on parental responsibility but thinking through whether and maybe more importantly, when to pursue the application.
When a relationship has gone wrong, it takes time to restore the trust. It may be that the issue of PR can wait and other things such as contact are more important. Is there some way of introducing a third party as mediator or medium for communication? The paternal grandmother – the maternal grandmother – a sister etc.
A father may have a great deal to contribute to the child’s future. The mother may unreasonably be refusing to agree that he should have parental responsibility. If that is the case then maybe the father needs to go for it to make the point about his status in the child’s life.
Attitude of other agencies
Other agencies such as doctors and teachers are not always familiar with the rights of a non-resident father. They may know they have legal responsibilities to share information but may have practical constraints. Schools, for example, may have a duty to inform parents (whether or not with parental responsibility) but they tend to take the practical short cut. The child is given information in an envelope to take home to the main carer. This does not reach all the relevant people. It may be necessary to get in touch with the school directly and ask for arrangements to be made about copies of reports or the school calendar. GPs are under so much pressure. They do not want to produce anything in writing and do not usually do so when someone attends for an appointment. They have little or no access to legal advice and do not know what to do or what their legal responsibilities are. If in doubt, they will take the line of least resistance and will not necessarily put themselves out just because you share parental responsibility. There could be informal ways round this, depending on the situation. For example, the child suffers from asthma. Mother usually takes the child to the GP as the child lives with her. Father wants to know more – see if it can be agreed that father should take the child to the GP and let the GP know that he may want a bit longer so he can be got up to speed.
The above deals with the usual situation – the child is living with mother and having contact with dad. The same applies if the situation is reversed. Similar considerations arise if PR is being shared between parents and grandparents.
Parental Responsibility Agreement
Go to this website for a copy of the form to fill in together with guidance on what to do with it.
http://www.hmso.gov.uk/si/si2001/20012262.htm
The Advice Now website also gives step by step guidance on how to do it and links to a copy of the form in a pdf file which can be printed off and filled in:
http://www.advicenow.org.uk/go/livingtogether/feature_256.html?pkgid=22
The completed form needs to be taken to a family proceedings court, county court or the Principal Registry of the Family Division, together with the child’s full birth certificate and evidence of identity showing a photograph and signature. A court official will then witness both parents signing the agreement. Two copies of the form then need to be sent to the Principal Registry (address given on the form).
FAQs
I do not have parental responsibility but I have regular contact with my child including overnight stays. I want to take him on holiday to Cyprus to see my relatives. I know his mother will object to this if I ask her. Do I have to get her agreement? Can I pretend I am taking him to Cornwall instead?
If you take a child out of the UK without the mother’s consent you commit a criminal offence of child abduction. You will not be able to apply for a passport without parental responsibility. Even if you had parental responsibility, taking a child out of the country without a mother’s consent is illegal. Even if you got away with it in the sense that the mother did not find out about it until you got back it is going to undermine her trust in you and she may be unwilling to allow contact in future. It is much more sensible to think about why the mother might object and see whether you can overcome those objections. She may be reassured if she has full information about your travel plans such as flight times and the address where you will be staying, perhaps with a contact number. If she really will not agree, you can make an application to the court. The court may make orders allowing you to go on holiday but may also want to add orders ensuring your return. You should seek legal advice if you have to go to court.
For a more detailed article on taking children out of the UK to live see http://www.familylawweek.co.uk/library.asp?i=3034
I am a stepfather. I have been living with a woman who has 3 children for about 4 years. I have 2 children of my own who also live with us. We are about to get married. Will this give me parental responsibility for my partner’s children? Do I need parental responsibility?
Getting married to your partner will not give you parental responsibility for your step-children (although you will have responsibilities for the welfare of any child in your care and for maintaining any child of the family). The only way you can acquire it is by applying to the court for a residence order or by adopting them. As a married step parent with whom a child has been living for 3 years you have a right to apply for a residence order. Much will depend on the attitude of the children’s father. If he is not involved with the children, asking for a residence order may be reasonably straightforward (although the father will have to have notice of your application). If he is involved and especially if he has parental responsibility, you would be well advised to try to get him to agree that you should have a residence order. It may help if you explain to him clearly why you want it (for example, to enable you to be fully involved in the children’s schooling or medical treatment) and to offer any appropriate reassurance about his continuing role in the children’s lives. If he has parental responsibility, you would share it with him as well as the children’s mother. In other words it does not take it away from him. You should take legal advice about the best way forward.
I have only just found out that a previous partner of mine had a child after we separated and I am the father. We were not married. Apparently a care order has been made and the child is likely to be adopted. What can I do?
You do not have parental responsibility. However, you should have been told about the care proceedings and you should be notified about any application for adoption or freeing order, whether or not you have parental responsibility. You need to take urgent legal advice and to contact social services to let them know that you are the father and how they can contact you. You may want to ask social services to consider you as a possible carer for the child and to make applications to the court. If for some reason you are not able to care for the child, you may still want to take some part in the process so that the child knows something about you.
I am a mother and want to change my child’s name. We have not heard from the father for over two years. I was not married to him and he does not have parental responsibility. I am about to marry and want my child to be known by my husband’s surname.
Strictly speaking you may act alone and change your child’s name. You may do so formally (by executing a deed) or informally by simply using the new name and asking other people to do so. However, it is much better to seek agreement if at all possible, depending on whether you know where the father is. If the child’s father had been more involved in the child’s life, it would be extremely important to consult him. If you change the name and he finds out about it, he could make an application to the court, whether or not he has parental responsibility. A common solution is to adopt a double barrelled name for the child as this allows a link to be maintained with both sides of the family. If the father has parental responsibility you may not change a child’s name without his consent.
For some other good resources on Parental Responsibility see:
Children’s Legal Centre leaflet:
http://www.childrenslegalcentre.com/Shared_ASP_Files/UploadedFiles/D886A631-3B1E-4B0B-A785-DD3ECAFED98F_FACTSHEETPR.pdf
Families Need Fathers:
http://www.fnf.org.uk/pro.htm