As most mothers or fathers will confirm, becoming a parent is a momentous event. The focus of your life changes, shifting onto this new person you have brought into the world. But along with all the worries and responsibilities that accompany steering someone all the way from childhood into adulthood, being a parent can also bring a new sense of purpose in life. Not to mention plenty of fun too.
One of the functions of family law is legally defining some of the personal fundamentals of life, things that may, at first glance, do not seem to need any definition, and that includes the role of the parent. Of course such definitions do matter when it comes to those grey areas and uncertainties that life always throws up.
What are the most common reasons parental responsibility is applied for?
The role of parent is defined in law as ‘parental responsibility’, and this in turn is defined under 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”. Although it includes things such as the requirement to house a child and protecting and caring for a child, parental responsibility as a legal concept usually arises when a separated or divorced parent wants to be involved in decisions relating to a child’s upbringing. The most common kinds of circumstance in which parental responsibility (or PR) applies are:
- Naming the child and registering their birth and consenting to any change of name.
- Determining the religion, if any, of a child.
- Determining how and where a child should be educated.
- Consenting (or refusing consent) to a child’s medical treatment, such as a major operation.
- Determining where a child should live and whether they should be able to move abroad with the other parent.
Who has Parental Responsibility for a Child?
Automatic Parental Responsibility
The mother of a child always automatically has PR. The father of a child may or may not automatically have PR, depending on their circumstances.
If the parents were married when the child was born the father automatically has PR.
If the parents were not married but the child was born on or after 1 December 2003 and the father is named on the child’s birth certificate, he will have PR.
Acquiring Parental Responsibility
If the parents were not married at the time of the birth but later marry, then the father acquires PR by way of that marriage, although please note this does not apply to step-parents.
However, if you are a step-parent, it is possible, and sometimes advisable, to obtain parental responsibility for your partner’s child or children. For example, if the child were to fall ill or suffer an accident in your care and both your partner and the other parent were not available, you could be involved in any required medical treatment.
Step-parents are able to acquire PR through the agreement of all the other people with PR in the child’s life . This would be done by completing a form, signed by both parents, and witnessed by a court official. Alternatively step-parents can apply through the courts for PR.
If the child was born on or after 1 December 2003 and the father’s name is, at a later date, inserted onto a child’s birth certificate and the birth is re-registered, then the father will acquire PR.
If the father (or indeed any person) has a child arrangements order stating that the child lives with him (previously known as a ‘residence order’), he will hold PR for the child for as long as that order is in place.
If none of these circumstances apply, it is possible to acquire PR by preparing a ‘parental responsibility agreement’ or by on an application to the courts.
The partner of a mother having a baby by assisted reproduction, regardless of whether the partner is male or female, will have PR if they are either married or in a civil partnership at the time of the birth or subsequently become so. If they are not married or civil partners or do not subsequently marry or form a civil partnership, the other parent can acquire PR by agreement or application to the courts.
If the parents of a child are able to agree that the father who does not currently have parental responsibility should hold it, a parental responsibility agreement can be entered into. The parents complete a form that can be obtained from the courts or through www.gov.uk. It is signed by both parents in the presence of a court official and grants the father PR without the need to go through a more formal court process. This is something your solicitor can assist with if you are unsure. This can, however, only be done with the co-operation of both parents and sometimes the other parent will not agree to the other parent having PR. In these circumstances, the father would need to make an application to the court for a parental responsibility order.
When the courts consider an application for parental responsibility and whether a father should be awarded PR, they take into account the commitment the father has shown to the child, such as spending time with him or her. They will also consider the degree of attachment between the child and father and his reasons for wanting PR. The court will ultimately make its decision based upon what is in the best interests of the child. Provided the father already has a relationship with the child in which he spends time with him or her on a regular basis, it is more common than not for the court to grant PR.
When does parental responsibility become relevant?
In order to do certain things in relation to the child, you must obtain the consent of anyone else with parental responsibility. As mentioned above, such circumstances include changing the child’s name, determining which school they should attend and taking them abroad. Unless there is a court order in place which states otherwise, parents should obtain the consent of anyone else with PR even for short holidays abroad. But it should also be noted the courts would generally look rather dimly upon a person with PR trying to restrict a legitimate and reasonable request for a holiday.
Parental responsibility concerns the more important things in a child’s life. It is not designed to interfere with day-to-day concerns, such as what a child might eat or how they dress. Those sorts of decisions are the responsibility of the parent who has care of the child at that time and parents should generally be trusted to look after a child in an appropriate way exercising their own discretion on such issues. Therefore separated or divorced parents are not required to discuss and agree the minutiae of every aspect of a child’s life – agreement is only necessary on the important aspects of their childhood. Of course parents should endeavour to discuss and agree as much as they can on how their children should be parented, from the tricky issue of discipline right through to when they go to bed.
Can parental responsibility be lost or taken away?
You do not “lose” Parental Responsibility by reason of you separating or divorcing from the other parent or if the child no longer lives with you. It is therefore very important that parents, even when separated or divorced, continue to consult each other on important issues.
Parental responsibility can in fact only be removed in some very limited circumstances. It is lost if a child is adopted and can also be removed by the courts in some extreme cases when a parent is found guilty of neglect or abuse of very serious kinds.
However, such removals are rare.
Other Issues to Note
What parents must be aware of is that whether a parent has parental responsibility or not does not affect their duty to maintain a child. Therefore if a child lives with its mother, the parents were never married and the father is not named on the birth certificate, that father must still pay the statutory rate of child maintenance and the mother can pursue this whether the father has PR or not.