The Legal Concept of Parental Responsibility?

Lauren Cannon, a barrister at Guildford Chambers, briefly outlines the legal concept of ‘Parental Responsibility’, what it means, and who has it.

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What is it?

‘Parental Responsibility’ is a term referring to certain legal rights, duties and responsibilities in relation to a child, provided by the Children Act 1989. In addition, Parental Responsibility is defined as “rights of custody” for the purposes of the Hague Convention on Child Abduction.   These rights and responsibilities exist until the child is 18 years old.

 

These rights and responsibilities include:

  • maintaining the child
  • making decisions about significant medical treatment
  • choice of educational provision
  • the naming of the child and any change of surname
  • taking a child abroad (unless there is a Residence / Child Arrangements Order in place)

If a holder of Parental Responsibility, does not live with their child, they have the right to be kept informed and consulted on the important decisions regards exercise of Parental Responsibility, but not regards the day-to-day exercise of Parental Responsibility by the other parent.

Who has it?

All mothers have Parental Responsibility for their children.

In England, fathers have Parental Responsibility in a number of circumstances:

  • Married to the child’s mother at the time of birth or subsequently 
  • Jointly registering the child’s birth certificate (births registered after 01.12.2003)
  • Jointly re-registering a birth that was initially registered before 01.12.2003 to include the father (only applicable if the father was not named on the original registration
  • Jointly adopted the child with the mother
  • The parents have entered into Parental Responsibility agreement, which has been duly registered
  • The court has made an order granting Parental Responsibility
  • By grant of a Child Arrangements Order that the child live with the father (previously Residence orders), as Parental Responsibility must be granted ancillary to that order for as long as the CAO is in force

There are similar rules in relation to births registered in Scotland and Northern Ireland, but there are some distinctions.

How does it work in same-sex relationships?

This is a complicated area and cannot be fully set out in a brief overview like this.

In cases of artificial conception a same-sex partner of the mother may have the legal status of ‘second parent’ depending on the specific circumstances at the time of conception.   Post 06.09.2009 in the case of children conceived after sperm donation, the birth mother’s partner is considered the legal ‘second parent’ if one of 2 conditions applies:

  1. They were in a civil partnership at the date of conception (presuming agreement to the pregnancy) and the conception was not by sexual intercourse
  2.  If not civil partners, the fertility treatment must be in a licensed UK clinic with appropriate forms completed by both parents

Parental Responsibility then is acquired in much the same way as for a legal father.

A civil partner may obtain Parental Responsibility for a partner’s child (their step-child) by agreement with all those who hold Parental Responsibility for the child or by court order.

By grant of a Child Arrangements Order as Parental Responsibility must be granted ancillary to that order for as long as the CAO is in force

Adoption of a partner’s child would provide Parental Responsibility.

In the case of a jointly adopted child Parental Responsibility would be shared by the adopters.

Surrogacy

There are different procedures in relation to surrogacy.   Either an application for a Parental Order or Adoption is required to transfer legal rights in relation to the children from the birth mother to the parent(s).

Who else can have Parental Responsibility?

Applications for Parental Responsibility can be made by a non-parent who has sufficient connection to the child e.g a step-parent or grandparent / other relative. 

Local Authorities and Adoption Agencies can also hold Parental Responsibility for a child in specific circumstances.

Terminating Parental Responsibility

Parental Responsibility for persons other than the birth mother can be terminated by court order. Applications can be made by a person holding Parental Responsibility or by the child (with the permission of the court).

For more information about legal issues relating to children, please contact Guildford Barristers Chambers on T: 01483 539131.

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