There is often a question over who has parental responsibility of a child, especially where parents are unmarried or in same sex couple relationships.
What is parental responsibility?
Parental responsibility means all the rights, duties, powers, responsibilities and authority that a parent of a child has in relation to the child and their property by law. A person with parental responsibility can make decisions on behalf of the child for example in relation to the child’s accommodation, education and medical treatment.
Having (or not having) parental responsibility does not determine whether a person has an obligation to provide for the child financially from their own resources. For example, guardians have parental responsibility but do not have financial responsibility, while the child’s father may not have parental responsibility but does have financial responsibility.
When does parental responsibility end?
Generally it lasts until the child reaches 18 but it may come to an end sooner if the child is adopted or, if it was acquired as a result of a court order or a parental responsibility agreement, the court may bring it to an end.
Who has parental responsibility?
The birth mother (person who carried the child) automatically acquires parental responsibility. This includes a transgender man who gives birth to a child as they will be registered as the child’s mother on the birth certificate.
Mother and father
If a child’s parents are married or in a civil partnership with each other when the child is born, both of them automatically have parental responsibility.
If the parents are un married, the father can acquire parental responsibility if he:
- Marries the mother or enters into a civil partnership with her.
- Enters into a parental responsibility agreement with the mother and files it at court.
- Obtains a court order granting it to him.
- Is named in a child arrangements order as a person with whom the child is to live. When the court makes a child arrangements order naming the father as a person with whom the child lives, it must also make a parental responsibility order.
- Is named in a child arrangements order as a person with whom the child is to spend time or otherwise have contact and the court decides that it would be appropriate to make an order in his favour.
- Is registered as the child’s father on a birth certificate (register of births) in the UK on or after 1 December 2003. They must however be the biological father. Non-biological father’s will not automatically acquire parental responsibility by being named on the register of births.
- Becomes the child’s guardian.
- Adopts the child.
Parental responsibility for same sex couples
But what about parents who do not fall within the above categories, such as those in same-sex couples who have used a surrogate?
Two male parents
Where two male parents have a child born through surrogacy, then they may acquire parental responsibility by one of the following routes:
- If one of the male parents is the “biological father” and is subsequently named on the birth certificate then he, like other unmarried fathers, will automatically acquire parental responsibility.
- Two male parents may apply for a parental order from the court, which will reassign parentage to the intended parents after birth.
Two female parents
Where a child is born by fertility treatment given on or after 6 April 2009, they may have two female parents. The woman who carried the child is treated as the mother and has parental responsibility in the same way as any other mother.
A second female parent is treated in a similar way to a father. She has parental responsibility automatically if she was the mother’s same-sex spouse or civil partner at the time of the fertility treatment and consented to the treatment.
If she is a second female parent under section 43 of Human Fertilisation and Embryology Act 2008 (HFEA), she can acquire parental responsibility in the same way as an unmarried father. Section 43 applies if she was not the mother’s same-sex spouse or civil partner at the time of the treatment, but at that time the two women consented in writing to her being the child’s second parent and the mother was neither married nor in a civil partnership with another individual who is treated as the second parent.
Step-parents and parental responsibility
A step-parent can acquire parental responsibility for a child if they are married to, or are the civil partner of, a parent of the child who has it currently, and they do either of the following:
- Enter into an agreement with all parents who have responsibility and file it with the court.
- Obtain a court order giving them parental responsibility.
A step-parent can also obtain it in the same way a father can by being named in a child arrangements order as:
- A person with whom the child is to live. The court will automatically make a parental responsibility order in favour of the step-parent.
- A person with whom the child is to spend time or otherwise have contact but is not named as a person with whom the child is to live. In these circumstances, the court may provide for the step-parent to have parental responsibility in the order but the grant is not automatic.
When do others have parental responsibility?
An individual other than a parent can acquire parental responsibility for a child if they:
- Adopt the child.
- Becomes the child’s guardian.
- Obtain a child arrangements order naming them as a person with whom the child is to live.
- Obtain a child arrangements order naming them as a person with whom the child is to spend time or otherwise have contact but not the person with whom the child is to live, and the court decides to make a parental responsibility order in their favour.
A person may also have parental responsibility temporarily if he obtains an emergency protection order from the court to protect the child from significant harm.
What happens if those with parental responsibility disagree?
If more than one person has responsibility and there is a disagreement between them, it may be necessary to apply to the court for any of the following orders under Section 8 of the Children Act1989:
- A child arrangements order which regulates any of the following:
- with whom the child is to live, spend time or otherwise have contact; and
- when the child is to live, spend time or otherwise have contact with any person.
- A prohibited steps order – this is an application to the court for an order to stop someone from exercising their responsibility in a particular way, for example relocating with the child.
- A specific issue order – this is an application to the court which deals with something specific regarding a child for example what school they should go to.
How can Watson Morris help?
At Watson Morris we specialise in family law which includes parental responsibility in all different situations. For an initial discussion to see how we can help, at no cost or obligation, please contact us.
Written by Faye Wright
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