Parental Responsibility – A Practical Guide
In this blog we will review what parental responsibility entails from a family law perspective. You will also find a practical point of view on what parental responsibility means for families.
Updated August 2022
What is parental responsibility?
Parental Responsibility is defined in s 3(1) Children Act 1989 as being: “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”.
Parental Responsibility is important as it gives you the legal authority to make important decisions about your child and their upbringing, such as their name, which school they attend, what religion they follow and where they will live.
Mother’s and father’s rights and responsibilities continue until the children are 18 and, will only be affected by local authorities raising concerns around the safety and wellbeing of a child and taking the child into protection.
Do I have Parental Responsibility?
You can acquire parental responsibility for a child in several different ways.
Firstly, a birth mother will always have parental responsibility for her child (even in instances of surrogacy), and a father will obtain parent responsibility if he is married to the mother (or in a civil partnership). Same-sex civil partners also share parental responsibility if they are named on a child’s birth certificate. An unmarried father can also obtain parental responsibility if he is named on the birth certificate for the child, or if he marries the mother at a later date.
Biological fathers can apply to the court for parental responsibility after the birth, where they are not named on the birth certificate. The court can give an order of parental responsibility in different ways, such as via adoption, or being named in a Child Arrangement Order.
What happens if I don’t have Parental Responsibility?
If you are not named on your child’s birth certificate, nor married or in a civil partnership with the mother, you can obtain parental responsibility through other means:
- The first would be to marry the mother or enter into a civil partnership, which may not be a viable option if the relationship has broken down between you;
- Likewise, you have the option of entering into a parental responsibility agreement with the mother (which will need to be filed at the Central Family Court), but again, this may not be possible if the relationship has broken down between you, in which case a court application, explained below, may be necessary.
Entering into a parental responsibility agreement, however, is helpful for grandparents or stepparents, who may be acting in a parental capacity for a child; - By application to the court. You can apply to the court and ask to be given parental responsibility for your child, or if you or the other parent applies for a Child Arrangement Order and you are named within this, you will automatically be awarded parental responsibility for that child.
What does having Parental Responsibility look like on a day-to-day basis?
You do not lose parental responsibility following divorce or separation. Pleasingly, most parents continue to reach agreement on key parenting decisions around education, medical treatment and each person’s duty to care for a child after separating, but for some it isn’t that easy and you should seek advice at an early stage if/when this begins to become an issue.
Where both parents have parental responsibility for a child or children, that does not necessarily mean that every decision, such as what the child has for dinner, or what they are to wear, needs to be made jointly. The law and the court expects parents to take a common sense approach, rather than requiring a court order, through an often lengthy and costly process, to determine such issues.
Routine decisions can be made by the parent with whom the child is with at any given time, but all important decisions such as where the child goes to school, their surname, religion or medical procedures required must be made jointly between all those who hold parental responsibility for the child, where it is practical. Naturally, in an emergency situation, it is not always an option to ensure everyone is consulted, but it is important that the person who is required to make that decision, does have the appropriate authority to do so.
These decisions should be made together and equally; the parental responsibility of one party is no more important than another, so even if the child does not live with you, this does not mean that the views of the resident parent are any more important that yours.
What happens when people with parental responsibility disagree?
People sometimes ask “If we both have Parental Responsibility for our child – what happens if we don’t agree?”
Some questions cannot be resolved with a compromise. If you can’t reach an agreement and find practical solutions, it is always worthwhile considering mediation, and child-focussed mediation (such as that offered here: Issues Involving Children). Often a neutral third party can help to navigate through the issue. Child-inclusive mediation, a relatively new concept where the child or children speak to the Mediator directly, before the Mediator speaks to the parents is increasingly effective.
If you are unable to agree on an issue such as schooling, and you have exhausted all other options (such as mediation), either parent can make an application to the court to determine the matter. The court will review the evidence and the arguments from both parties before making a decision. This application is called a Specific Issue Application and generally relates to a single issue, such as whether one party can take the child on an extended holiday or what school they are to attend if the parties cannot conclude on their own.
When there is a major decision to be made – for example around education or relocation, whether that’s moving to another part of the UK or to another country – you are expected to communicate and make decisions with the other parent. In situations like this, it is always recommended to reach an agreement in writing as to the decision that has been taken.
When coming to a decision regarding a child, the court will use the best interest/welfare test. They will decide what is best for the child, and will focus on the outcome they determine to be in the best interests of that child.
The court will also have regard to the welfare checklist, which can also be found in Section 1(3) of the Children Act 1989 and provides a list of factors that the court will have regard to the following when making a decision about a child:
- the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
- his 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, is of meeting his needs;
- the range of powers available to the court under this Act in the proceedings in question.
If you are considering making an application to court for parental responsibility, or for a specific issue application, it is important to remember that the court will determine the issue based on the interests of the child, not the parent. We echo this advice when couples cannot reach agreement. We often start by looking towards ways to improve communication between mother and father to reduce tension. When parents consider the question “What is best for my child?” it can be easier to reach a positive outcome and, as mentioned above, mediators can help you stay focused on this question. Although mediators cannot give you legal advice, they can work with us to help you to reach an agreement that resolves the issue or dispute, avoiding court and a decision being imposed on both of you. Family law mediators always look to balance the rights of the people who have parental responsibility against the wellbeing of the child. We can discuss mediation with you and make the referral to mediators we have worked with and whom we trust to help assist you, and us, in resolving disputes.
Medical Treatments, Vaccinations and Parental Responsibility
During the Covid-19 pandemic, some parents struggled to reach agreement on vaccinating their children. When it comes to medical treatments, including any vaccination programme, you will find that both mediators and the courts will focus on the best outcomes for the child. They will work on advice provided by the UK Government and the NHS, based on the latest understanding of disease biology and science. While Covid -19 is a relatively new issue to provoke controversy between parents, vaccinations generally have caused the courts issues for some time. For children living in England and Wales, the court has jurisdiction to rule in these cases and it can make an order that a child be vaccinated against the wishes of either of his or her parents.
If you would like to discuss this further and take advantage of our free half hour consultation call us on 01608 686590 or send us an email. You can also find out more about our services for clients regarding Children and divorce.
Useful resources for Parents:
Resolution – Separation & Divorce – Helping Parents to Help Children