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Parental Responsibility

Parental responsibility (also referred to as PR) is considered by some as something of a hazy concept, difficult to clearly explain, but we all know what it is when we see it.

What is meant by parental responsibility?

Parental responsibility is actually clearly defined in section 3 of Children Act 1989 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.

Parental responsibility is not designed to entitle a holder to interfere with general day-to-day decisions involving a child, such as what they wear, eat or undertake as a hobby etc. Instead, it is designed to allow individuals with PR to have a voice in major decisions about children on issues concerning their care and upbringing, including:

  1. where the child should live and what contact they should have with other PR and non-PR holders;
  2. which school they should attend;
  3. what religion the child should follow, if any;
  4. what name they should have and whether or not that name should be changed;
  5. whether the child should undergo a particular form of medical treatment;
  6. dealing with any interest in property or money they have.

Who has parental responsibility?

This is perhaps one of the most important and yet most frequently misunderstood aspects of the law surrounding children.

Firstly, more than one person can have PR for the same child at the same time. The number of parental responsibility holders does not in any way diminish the status or strength of the PR of other holders.

A child’s biological mother automatically has parental responsibility. She will retain PR even if she and the child’s father separate, regardless of whether she and the biological father were ever married.

A father who is married or has a civil partnership with a child’s biological mother when the child is born will also automatically have parental responsibility. Again, the father’s PR status will not be lost if the parties were to later separate or divorce.

Fathers of children that are born after 01 December 2003 and are not or never were married or civil partner to the child’s mother will have parental responsibility if they are named on the child’s birth certificate.

Fathers of children that are born before 01 December 2003 and weren’t or are not currently married to the child’s biological mother may not have parental responsibility.

When does parental responsibility end?

In the vast majority of circumstances, parental responsibility will last until the child in question turns 18.

It is possible for PR to end sooner, for example if a child were adopted or the court made an order. Additionally, a parental responsibility agreement can result in it ending before a child’s 18th birthday too.

It is perhaps also worth noting that PR may be delegated temporarily to a third party, e.g. grandparent or party in loco parentis, but the burden for ensuring the arrangements are satisfactory remains with the delegating parental responsibility holder.

How do you get parental responsibility?

Providing the child in question has not yet turned 18, there are a number of ways an individual can obtain parental responsibility. These include:

a) Perhaps the simplest method of securing PR is for it to be provided by way of written agreement from the other parental responsibility agreement holders. For many families, this is simply a case of the child’s mother providing agreement to a legal document that is lodged with the court. Reflecting modern families, the above process applies equally to biological fathers and step-fathers alike.

b) Although clearly now a diminishing number, for those children born after 01 December 2003, where the parents were not and have not been married or civil partners, it is possible to re-register the child’s birth to add the father’s name to the child’s birth certificate. However, it is important to note that this process also requires the biological mother’s consent and that furthermore, that no other third party has been registered on the child’s birth certificate as the child’s father.

c) If agreement with the PR holders is not possible, a party can apply to court for parental responsibility. Before making the application to court, the prospective applicant must attend a Mediation Information Assessment Meeting (MIAM) to establish if there are alternative methods of resolving the dispute with the child’s other PR holders.

The existing PR holders can oppose the application and would be required to set out their reasons for doing so. When considering the application for PR, the court will consider the applicant’s commitment and attachment to the child in question, and whether the reasons for applying are genuine. Generally speaking, the courts are receptive to applications by fathers for parental responsibility, unless it is apparent that the father poses a risk of harm to the child or mother.

d) If PR is not already held, the court will automatically award parental responsibility to a successful application seeking an order under section 8 Children Act 1989 for the child to live with them. The court also has the authority to award parental responsibility of its own volition in circumstances where an application merely seeks a Child Arrangements Order for contact under section 8, should it be in the child’s best interests to do so.

Additionally, there are other less frequent circumstances involving surrogacy and Special Guardianship Orders which may confer parental responsibility too. Independent legal advice from a family law specialist should be sought if such circumstances apply to you.

Can I withhold parental responsibility if I don't get child maintenance payments?

The law governing matters concerning children does not align the principles of parental responsibility and child maintenance. Whether your ex-partner pays child maintenance or not will not impact on his status as a PR holder.

Can you lose parental responsibility?

In certain circumstances, it is possible to remove parental responsibility, albeit comparatively rare to do so. How to remove PR depends on how the parental responsibility holder acquired their status as a holder.

Parental responsibility granted to an unmarried father can be terminated by the court, following an application made by any other parental responsibility holder. In considering the application to withdraw PR, the child’s welfare will be the paramount consideration of the court. However, it is likely to be only in unusual circumstances that such an order would be granted.

Parental responsibility held by a father that was married to the biological mother at the time of the child’s birth cannot be terminated, by consent or otherwise, other than in the case of an adoption of the child to a third party.

However, the court does have the ability to manage the exercise of PR by a holder, utilising Prohibited Steps Orders and Specific Issue Orders to meet desired aims in keeping with the child’s best interests.

What is a parental responsibility agreement?

Unmarried parents may well be content living together and happy to acknowledge their shared responsibility for their children. In such circumstances, they are able to enter into an agreement which will give them each joint parental responsibility – effectively putting them on an equal footing, as if a parental responsibility order had been pronounced by the court.

The regulations surrounding these parental responsibility agreements are complex, requiring the agreement to be in writing using a particular court form, signatures of the parents being witnessed by court officers and ultimately, being recorded at a central registry, with such agreements being open to public inspection.

These types of agreements are becoming increasingly rare, with less than 4,000 or so being recorded each year. The scarcity of parental responsibility agreements is seen as a reflection of the complexity associated with registered them, aligned with the other available avenues for parties to secure parental responsibility.

It is important to note that even though PR can be acquired by agreement, it cannot be ended by agreement. It will only end when the child in question turns 18 or by court order.

PR disputes with your ex and what you can do

In any family law dispute, there is always merit in reflecting on the available forums for resolving a dispute, e.g. mediation, arbitration, court proceedings. This is particularly important on matters concerning children, where it is often the case that the parties will continue to have some form of interaction and a relationship with one another, even after the dispute has been resolved.

When a dispute arises about a specific point regarding any aspect of how a person exercises their parental responsibility, an application may be made to the court for either a Specific Issue Order or a Prohibited Steps Order respectively.

It is always worth speaking to a family law specialist about what options are available to you and which might suit you and your child’s circumstances. Hawkins Family Law are family law specialists, meaning we have years of experience with cases regarding  family matters. If you are looking for reliable and accredited legal advice regarding parental responsibility, speak to one of our team today.

Philip Hunter

Philip is a Resolution member and formed part of the campaign to support no fault divorce proceedings. Philip is also contributor to the legal and national media on family law issues.

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