The law defines parental responsibility 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”
In short a person who has parental responsibility for their child has the legal authority to make decisions about important aspects of their child’s life. These can include their name, school, religious upbringing and place of residence.
Who has parental responsibility?
A mother automatically has parental responsibility for her child from birth. Whether or not a father has parental responsibility is more complicated. A father obtains parental responsibility by being named on the birth certificate (for a child born after 1.12.03), marrying the mother, entering into a parental responsibilty agreement or obtaining a court order.
Other people may acquire parental responsibility by a court order (eg a grandparent who has a residence order). From 22nd April 2014 the court will no longer make residence or contact orders. Rather it will settle the arrangements for children by making a child arrangements order. Such an order will confer parental responsibility upon any person with whom a child is to live.
The court has the power to make orders about how parental responsibility should be exercised.
Parental Responsibility FAQ’sDo both parents have parental responsibility?
This depends on a number of different circumstances:
A mother automatically has parental responsibility for her natural child. The only circumstances in which she can lose parental responsibility is if the child is adopted by someone other than a step-parent.
Some, but by no means all, fathers have parental responsibility for their children. If you are a father of a child born in England and Wales you will have parental responsibility for your child if any of the following apply:
- the child was born after 1st December 2003 and your name is on the birth certificate
- you were married to the child’s mother at the time of the birth
- you have married the child’s mother since the child’s birth
Living with the mother, even for a long time, does not give a father parental responsibility and if the parents are not married, parental responsibility does not always pass to the natural father if the mother dies.
If you are a father who does not have parental responsibility as a result of any of the above then it is possible for you to acquire parental responsibility in a number of ways, as follows:
- By entering into a parental responsibility agreement with the mother
- By obtaining a parental responsibility order from the court
- By obtaining a residence order from the court
If you are not a parent but are caring for a child (eg a grandparent) then you will acquire parental responsibility if the court makes either a residence order or a special guardianship order in your favour.
A father can apply to the court to gain parental responsibility. In considering an application from a father, the court will take the following into account:
- the degree of commitment shown by the father to his child
- the degree of attachment between father and child
- the father’s reasons for applying for the order
The court will then decide to accept or reject the application based on what it believes is in the child’s best interest.
If you are a father who has obtained parental responsibility by means of a court order, as a result of being on the birth certificate or as a result of a parental responsibility agreement, then in certain exceptional and rare circumstances the court can make an order which would mean that you that you no longer shared parental responsibility with the mother.
The making of an adoption order in favour of someone other than a step-parent will cancel the parental responsibility of both parents.
If a residence order or a special guardianship order in favour of a grandparent or other relative is cancelled then they will lose parental responsibility as a result.
Step parents do not automatically have parental responsibility even if they have been caring for a child as their own for many years. Step-parents can obtain parental responsibility by:
- entering into a parental responsibility agreement with both natural parents
- obtaining a parental responsibility order from the court
- obtaining a residence order
- being appointed as a testamentary guardian for the child (see below)
Only a father or a step-parent can obtain parental responsibility by entering into a parental responsibility agreement, which we can prepare for you. Every person who already has parental responsibility has to agree that you should share it with them and be prepared to sign the formal agreement. All signatures on the agreement have to be witnessed by an officer of the court and the agreement then has to be registered. Everyone who signs will need to have ID with them when they go to the court office to sign the agreement.
Any parent with parental responsibility can appoint a testamentary guardian for a child. The appointment of a guardian has to be in writing, dated and signed. A will is probably the best place to deal with appointing a guardian. It is important to note that the appointment of a guardian for a child will only take effect as follows:
- when the person appointing the guardian has died and
- only if there is no other person with parental responsibility still living
If those two conditions are both met then the testamentary guardian will acquire parental responsibility for the child.
We can advise whether you already have parental responsibility and if not, how you could acquire it. We can negotiate with the other parent. We can prepare a parental responsibility agreement for you. We can apply to court on your behalf for a parental responsibility order, or any of the other orders mentioned above. We can advise you about appointing a testamentary guardian.
Ready to talk to one of our specialists?
If you would like advice about obtaining parental responsibility you can find a complete list of the Simpson Millar legal team here or if you’d prefer to speak to one of us directly please call our Corn Street Office on 0345 357 9650
Family Law Specialist
Family Law Specialist
Family Law Specialist