March 6th 2018

Parental Responsibility – What Does it Mean?

Parents are often confused about what Parental Responsibility (PR) means and what they can and cannot do. The position can sometimes appear vague.

WHAT IS PR?

PR is defined in section 3 of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to a child and his property.” It is commonly accepted that PR includes, but is not limited to:

The right and duty to care for a child and provide a home;
To determine where a child should live;
To ensure a child of compulsory school age receives appropriate education;
To appoint a guardian (usually done by Will);
To consent to medical treatment or obtain appropriate medical treatment for the child;
To consent to the child’s marriage;
To name the child; and,
To remove the child from the UK.

More than one person can have PR at the same time. A parent does not cease to have PR just because another person acquires it, other than by way of a court order. Once a parent acquires PR it cannot usually be taken away other than by way of adoption, but the court can limit the exercise of PR. PR will usually last until a child reaches 18, when they become an adult, or in the event the court makes an adoption order.

WHO HAS PR?

PR is acquired by a child’s mother at birth. If the parents were married, the father will also acquire PR at the child’s birth. Otherwise, he will acquire PR if he is named on the child’s birth certificate after 1^st December 2003. If an unmarried father is not named on the birth certificate, or he is but the child was born before 1^st December 2003, he can acquire PR:

If he and the mother later marry;
If he and the mother sign a Parental Responsibility Agreement; or,
By an order of the court or appointment as the child’s guardian.

Proof of paternity may be necessary where this is disputed before the court can make any orders. The court will also consider whether or not an order should be made at all, depending on what is in the child’s best interests.

CAN A STEP-PARENT ACQUIRE PR?

A step-parent (ie someone married to one of the child’s biological parents with PR) can acquire PR, other than by way of a court order, if both of the child’s parents and anyone else with PR all agree and sign a Step-Parent Parental Responsibility Agreement. A step-parent can also acquire PR if they are appointed a child’s guardian under a Will of a parent who has died.

CAN GRAND-PARENTS ACQUIRE PR?

It is possible for anyone who is not a child’s parent, including grand-parents, to acquire parental responsibility by any one of the following methods:

By appointment as the child’s guardian under the terms of the Will of a parent who has died;
By being appointed as a Special Guardian;
By obtaining a Child Arrangements Order on an application under section 8 of the Children Act 1989 for the child to live with them, or by way of a specific PR Order when the court makes an order that the child spend time or otherwise have contact with them; and,
By obtaining an emergency protection order.

PR will usually continue until the child is 18 or the order granting the PR has earlier been discharged.

Therefore, part from under the terms of a Will, the only way a non-parent can acquire PR is by way of an order of the court.

ARE THERE ANY RESTRICTIONS ON THE EXERCISE OF PR?

Whilst in most cases, parents can exercise their PR independently of the other parent or people with PR. Generally, day-to-day issues are decide by the parent with whom the child lives or spends the majority of their time. There are exceptions to this which commonly include:

Changes to a child’s name which have been prohibited by the court without the express consent of all those with PR or an order of the court – this is specifically stated where the court makes an order with regard to where the child shall live;
Removal from the UK without both parent’s consent or a court order which can amount to a criminal offence under the Child Abduction Act 1984;
Where the court makes an order stating where a child shall live, the person cannot take the child out of the UK for periods in excess of 4 weeks at a time, without the consent of the others with PR or the permission of the court;
The court can make prohibited steps orders and specific issue orders which tell the parents and others how parental responsibility should be exercised;
A Special Guardianship Order gives someone, usually a child’s non-parent carer, enhanced rights to over-ride the wishes of the child’s parents;
A Care Order gives PR to the Local Authority (Children’s Services) to make decisions about the child’s welfare rather than the parents, subject always to review by the court.

WHAT IF PARENTS CANNOT AGREE?

Whilst parents can make some decisions independently of the other parent, they are encouraged to discuss arrangements and agree between them. If they do not agree, they should try to negotiate and reach a compromise which is in their child’s best interests. This can be achieved in a number of ways, including face-to-face meetings, letters between solicitors, mediation and collaborative law. If they are unable to reach an agreement, and provided there is evidence that mediation has been considered, or the case is exempt from mediation, it is open to either party to make an application to the court. It is important that any application relating to a child is made promptly.

In making decisions about children, the court has to have regard to that child’s welfare, in particular the factors set out in section 1 of the Children Act 1989, namely:

The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
His physical, emotional and educational needs;
The likely effect on him of any change in his circumstances;
His age, sex, background and any characteristics of his which the court considers relevant;
Any harm which he has suffered or is at risk of suffering;
How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
The range of powers available to the court under this Act in the proceedings in question.

Once these issues have been referred to the court, the court must be satisfied that the children’s welfare has been met and there are no concerns about the safety of the child or the parent they normally live with. There is a presumption that children benefit from knowing who each of their parents are and, subject to any concerns about the risk to a child’s health and welfare, that they should spend time with each of their parents.

The things that parents commonly refer to the court are:

Where and with whom the child should live;
Whether and on what terms the child should spend time or otherwise have contact with the other parent, including in particular holiday arrangements;
Where the child should go to school; and,
Whether or not the child should receive medical treatment.

WHAT SHOULD I DO NEXT?

If you have any questions or wish to discuss any of the issues raised in this article, please do not hesitate to call Andrew Hill, who is the head of our Family Department on 01539 723757.

Parental Responsibility – What Does It Mean?