Prior to 1991, ‘Parental Responsibility’ was not a legal status. The concept of parental responsibility came into force with the introduction of the Children’s Act 1989 on 14 October 1991 in England and Wales.
What is Parental Responsibility (PR)?
Parental responsibility is defined 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” by Section 3(1) of the Children Act 1989.
The most important roles for those with parental responsibility are to:
- provide a home for the child
- protect and maintain the child
Unless an Order is made by the Family Court saying otherwise, a person with parental responsibility can make important decisions about a child’s life. Some of the key actions and decisions which can be made by those with parental responsibility include:
- disciplining a child
- consenting to medical treatment;
- changes to the child’s living arrangements, including relocation to other areas and occasionally also other countries;
- choosing or changing the child’s name;
- choosing where the child shall be educated;
- choosing which religion or faith a child shall follow;
- looking after the child’s property; and
- consenting to take the child abroad for holidays.
Who has Parental Responsibility?
It is often incorrectly assumed that both biological parents will automatically have parental responsibility for their child. However, this is only correct for the mother.
A father usually has parental responsibility automatically if he is either married to the child’s mother or listed on the child’s birth certificate.
When a mother and father are married at the time of the child’s birth, or if they have jointly adopted a child, they will both automatically have parental responsibility for the child. Second female parents will also automatically have parental responsibility, if they were married to or in a civil partnership with the mother at the time of birth.
Married Fathers or Second Female parents will not lose parental responsibility if they get divorced or the civil partnership is dissolved.
Fathers who are not married to or in a civil partnership with the mother, step-fathers, step-mothers and grandparents will not have automatic parental responsibility.
The birth parent of an adopted child remains the child’s biological, or natural, parent as a matter of fact. However, such a parent is no longer the child’s legal parent, and does not possess parental responsibility, by virtue of the Adoption and Children Act 2002.
Whether or not an individual has parental responsibility is not determinative of whether an individual is a parent of the child as a matter of fact or in law. It is possible for a legal parent not to have parental responsibility (for example where it has been terminated by the court). It is also possible for a person who is not a legal parent to have parental responsibility.
Who can acquire Parental Responsibility, and in what circumstances?
A person can apply for parental responsibility if they do not automatically have it.
An unmarried father can acquire parental responsibility in several ways:
- jointly registering the birth of the child with the mother (from 1 December 2003)
- upon marrying the child’s Mother
- getting a PR agreement with the mother
- getting a PR order from a court
- getting a Child Arrangements Order specifying that the child lives with him
- being appointed the child’s Guardian (if the Mother dies)
The same would apply for a second female parent.
If a parent does not have automatic parental responsibility, it is prudent for them to acquire it – even if they believe they are on ‘good terms’ with the other parent. Many child arrangements exist on a ‘voluntary’ basis between the parties – which can work where there is a good degree of cooperative co-parenting. However, conflicts do arise – sometimes several years down the line. Parents can enter into a Parental Responsibility Agreement in order to give legal status to their respective roles. A Parental Responsibility Agreement is a formal document requiring the consent of both parents. It confers parental responsibility on both parents in a consensual way.
If there is no consent, the parent without parental responsibility can apply to the Family Court for a Parental Responsibility Order. It is usually the case that this will be granted if it is clear that the parent has an ongoing role in the child’s life and it is in the child’s best interests.
What if there is a conflict between those having Parental Responsibility as to how it is exercised?
If more than one person has parental responsibility, all those with parental responsibility should have a say in key decisions affecting the upbringing of a child. This will be a shared legal status, with no one parental responsibility holder having priority over the other.
Due to the range of decisions being made by parents for their child(ren) – often on a day to day basis, there will inevitably be disagreements at times where opinions differ as to what is best for the child(ren).
In cases where agreements cannot be reached or need legal enforcement, the Family Court can make various orders to regulate the exercise of parental responsibility, address disputes and provide clarity on parental roles. These Orders can be obtained upon an application being submitted to the Family Court. When making decisions, the Court’s paramount concern will be the best interests of the child.
The range of available Orders can be summarised as follows:-
- Child Arrangements Orders
Having parental responsibility does not mean that a parent automatically has the right to spend time with their child if they do not live with them. If the other parent refuses to let them spend time with the child, they can apply to the court for a Child Arrangements Order.
These orders specify who a child will live with and who they will spend time with. The Family Court can make an Order that the child shall live with both parents. If the Court makes an Order that the child shall live with a Father who does not already have parental responsibility for the children (even upon a shared basis), the Court will also make a parental responsibility Order in the Father’s favour. This is because it would be important for such a parent to have the ability to may key parenting decisions whilst the child is in their care, e.g. in the event of a medical emergency.
- Specific Issue Orders
The Court can make a decision on a specific matter which cannot be agreed between those with parental responsibility e.g. a change in the child’s school or authorising medical treatment.
- Prohibited Steps Orders
These Orders can be sought to prevent one party with parental responsibility making a unilateral decision which is considered to be potentially detrimental to the child’s best interests and welfare e.g. relocating with the child without consent, impacting the child’s wellbeing, or education, or relations with the other parent with parental responsibility and extended family.
When does Parental Responsibility end?
The need for parents to exercise parental responsibility often reduces as a child gains maturity and the ability to make up their own mind on certain matters.
Parental responsibility will end automatically when a child attains the age of 18 years, or if the Court makes an Order terminating the parental responsibility of a specific person.
There is no statutory provision for discharging the parental responsibility of a mother, a married father or a married second female partner (or civil partner) outside of surrogacy arrangements and adoption situations. A Mother’s parental responsibility can only be terminated by way of a Parental Order associated with surrogacy (Human Fertilisation and Embryology Act 2008, section 54) or by way of an adoption order (Adoption and Children Act 2002, section 46(2)). The same mechanisms apply for the termination of a father’s parental responsibility or that of a second legal parent married to (or in a civil partnership with) the mother of a child.
A person who has acquired parental responsibility shall cease to have that responsibility only if the Court so orders (Section 4(2A) of the Children Act). An application can be made to the Court by the other parental responsibility holder (or by the child) to terminate the parental responsibility of an unmarried father, second female parent or a stepparent, pursuant to the Children Act 1989, section 4(2A) or section 4ZA. The Courts will not terminate parental responsibility lightly, because of the perceived benefits to a child of having an acknowledged relationship with and link to both parents. However, there may be instances where the Court is satisfied that it is in the child’s best interest for a parent to lose their rights e.g. in cases of proven abuse or where that parent will pose a long-term risk to the child.
The Victims and Prisoners Act 2024 received royal assent on 24 May 2024. This Act includes provisions referred to as ‘Jade’s Law’ – named after Jade Ward, who was murdered by her estranged partner, who was the father of her four children.
Despite his life imprisonment and the fact that the children were being cared for by Jade’s parents, the Father was the only surviving adult with parental responsibility for the children upon their Mother’s death. The Father was entitled to be consulted over various decisions relating to the children’s education, health and welfare. He would also have to give his permission if Jade’s parents wanted to take the children abroad on holiday. It was reported that he made repeated requests from prison for school reports, photographs and medical information – something which caused immense trauma and distress to the family.
The creation of Jade’s Law means parental responsibility will automatically be suspended for parents convicted of killing the other parent with whom they have a child. Bereaved families will not need to apply for this. A Judge will then decide whether it is in the best interests of the child for the removal of parental responsibility to be permanent. The UK government said the new Law will protect children by preventing killers from unduly influencing their lives.
Expert Legal Support
Please contact our Family Law Specialists for expert advice if you are unsure whether you have parental responsibility for your child or children, you wish to acquire parental responsibility if you do not have it, or there are any issues regarding the decision making and arrangements for your children. Visit our Arrangements for Children service page for more information on the support we provide.
Senior Associate
colette.blackburn@dtmlegal.com
0151 304 7145
Senior Associate
01244 568635
