Parental responsibility — What is it? Who has it? Can it be removed?

Some individuals automatically assume that they have parental responsibility for a child, but the legal position can be more complicated.

Here, Legal Director and family law specialist Leanne Instrall looks at what parental responsibility actually means, who has it and whether it can be removed.

What is parental responsibility?

The Children Act 1989 provides that parental responsibility refers to all the rights, duties, powers, responsibilities and authority that a person has in relation to a child and their property. Parental responsibility automatically ends when a child reaches the age of 18 or if terminated by a court order.

In practice, having parental responsibility gives a person the legal powers to make decisions in relation to the upbringing of a child.

Such decisions might include:

• where the child should live
• where the child attends school
• health and medical treatment (e.g., whether a child should receive medical treatment or inoculations)
• changing a child’s name
• deciding whether the child can move to live abroad.

Who has parental responsibility?

While parental responsibility is automatic for some, others may need to take steps to acquire it.

A mother, for instance, automatically acquires parental responsibility for her child. Similarly, if a father is married to the mother at the time their child is born, or is named on the child’s birth certificate, they will also acquire parental responsibility automatically.

If the child’s father is not married to the mother at the time of the birth or named on the birth certificate, they may acquire parental responsibility if they:

• marry the mother
• enter into a ‘parental responsibility agreement’ with the mother
• obtain a court order for parental responsibility
• are named on a Child Arrangements Order
• become the child’s guardian or adopt the child.

The court’s main priority in deciding whether to grant a parental responsibility order will be the consideration of the child’s welfare and what is in their best interests.

The court will consider the following factors:

• why the parent is applying for parental responsibility
• whether the parent has demonstrated the appropriate level of commitment
• the level of attachment between the parent and child.

Parental responsibility in same-sex couples

Often, same-sex female couples may have a child through artificial insemination. Whoever carries the child will automatically have parental responsibility. If the couple are married or in a civil partnership, then their spouse or civil partner will also have parental responsibility.

Same-sex male parents can acquire parental responsibility if one of them is the ‘biological’ father and they are named on the child’s birth certificate. If a same sex parent does not automatically acquire parental responsibility, they can still acquire parental responsibility through various avenues such as adoption, entering into a parental responsibility agreement or applying to the court for a parental responsibility order.  

Step parents can also acquire parental responsibility if those with parental responsibility provide their consent. In these circumstances, a step parent parental responsibility agreement can be entered into, or the step parent could acquire parental responsibility through adopting their partner’s child or through a court order.  

It is also possible to obtain parental responsibility if you are not a child’s parent — for example, if you are a grandparent or other extended family member. Parental responsibility may be obtained by being appointed as a guardian or adopting a child.

Can a parental responsibility order be removed?

Technically, applications can be made to the court to remove an order for parental responsibility. However, in practice such applications will only be successful in exceptional circumstances. The court will only do this if it deems that removing parental responsibility would be in the best interests of the child.

As no family is the same, parental responsibility can be a complex area of law that depends on your personal circumstances. If you need advice regarding parental responsibility and your rights, get in touch with our family law team.

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