For couples getting divorced or anyone who is involved in a family law dispute involving children, the term ‘parental responsibility’ is one they are likely to hear regularly. But what is parental responsibility? Does the meaning differ from that of being a parent? Can a grandparent or another person who is related to the child be granted parental responsibility?
What is parental responsibility?
Section 3(1) of the Children Act 1989 defines parental responsibility as all the rights, duties, powers and responsibilities and authority that, by law, a parent of a child has in relation to the child and their property.
It includes, but is not limited to:
- the right and duty to look after a child
- to determine where the child should live and providing a home
- to make decisions regarding their education, hobbies and religion
- to appoint a guardian
- to consent to medical treatment or obtain appropriate treatment for the child
- to name the child
- to remove the child from the country
- applying for the child’s passport
- representing the child in legal proceedings
In Re H-B (Children) (Contact), the President of the Family Division, Sir James Munby, in discussing parental responsibility stated:
‘…parental responsibility is more, much more, than a mere lawyer’s concept or a principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child. Parental responsibility exists outside and anterior to the law. Parental responsibility involves duties owed by the parent not just to the court. First and foremost, and even more importantly, parental responsibility involves duties owed by each parent to the child.’
Parental responsibility diminishes the older a child gets and he or she gains the maturity to make their own decisions. In Hewer v Bryant, Lord Denning said parental responsibility ‘…starts with a right of control and ends with little more than advice’.
Who has parental responsibility?
When a child is born, the following people automatically acquire parental responsibility:
- the child’s mother or father, if they are married
- the child’s mother, if she is not married
- in relation to a child conceived after 6 April 2009, a child’s mother and the mother’s civil partner who is a parent by virtue of section 42 or 43 of the Human Fertilisation and Embryology Act 2008 where the mother has had assisted reproduction treatment and at the time is a party to a Civil Partnership or agrees to the other woman being a parent.
How do unmarried fathers acquire parental responsibility?
Fathers who are not married to the mother at the time the child is born may acquire parental responsibility if they:
- are registered as the child’s father on the child’s birth certificate
- marry the mother
- enter into a Parental Responsibility Agreement with the mother
- apply to the court for parental responsibility
- are appointed as a guardian of the child following the mother’s death
- are named as a person the child is to live with under a Child Arrangement Order (the court must make a separate Parental Responsibility Order in these cases – if the father is named as a person the child is to spend time with (formally known as access or contact), the court has the discretion to make a corresponding Parental Order).
Where the father has shown commitment, the courts will usually make an order of parental responsibility; however, the decision will be subject to the paramountcy of the child’s welfare.
Can people other than the mother and father acquire parental responsibility?
Step-parents can acquire parental responsibility through entering into a Parental Responsibility Agreement or by applying to the court for a Parental Responsibility Order.
Others can acquire parental responsibility for a child. For example, a woman who becomes a parent by virtue of the Human Fertilisation and Embryology Act 2008 but is not married to or in a civil partnership with the mother can acquire parental responsibility in the same way an unmarried father does (however, they have the choice of marrying the mother or entering into a civil partnership.
Others, such as grandparents, may acquire parental responsibility if they become a child’s guardian, if they are appointed as the child’s special guardian or through a court order.
How does parental responsibility work if the parents are separated or divorced?
Each person who has parental responsibility can exercise it independently, except in cases where statute requires everyone with parental responsibility to give consent before an action progresses. For example, one parent may enrol their child in an after-school club without seeking consent; however, they cannot place the child up for adoption without the agreement of everyone who has parental responsibility.
The court recognises there is a duty to consult the other parent in relation to long-term decisions which affect the child, such as the choice of school and ongoing medical treatment. For example, in Re G (Parental Responsibility: Education), the court held a father could not enrol his child in a boarding school without consulting the mother.
If a dispute develops over the exercise of independent action taken by one parent, it can be challenged by an application for either a Prohibited Steps Order or a Specific Issue Order.
Parental responsibility can cause confusion and disputes. If you have any questions, do not hesitate to contact one of our family law team for legal advice.
At Hart Reade, each of our family law solicitors are members of Resolution. In addition, many of our team are Collaborative Lawyers. Both organisations advocate for using non-confrontational methods for resolving family law disputes.
We can provide you with a wealth of information, advice and support regarding children’s law matters. To talk to any of the family law team, please call us on 01323 727 321.
Please note, this article does not constitute legal advice.
  EWCA Civ 389,  All ER (D) 202 (Apr)
  3 All ER 578
  2 FLR 964