Weekly Family Law Update January 5, 2022

What is Parental Responsibility?

Parental responsibility’ is a term that regularly crops up in family law proceedings, but which is often quite misunderstood.

So what exactly is parental responsibility, and how is it acquired?

Legal definition

Parental responsibility is defined 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”.

This definition is not actually very helpful, in more ways than one.

For a start, the word ‘rights’ is unhelpful, as it can encourage parents to believe that they have rights in respect of their children that they do not necessarily have.

For example, no parent has a right to have their child live with them, or even to have contact with their child.

These things will depend upon what is best for the welfare of the child, not upon any entitlement of the parent. And in any event the definition does not do anything to explain what the rights, duties, powers, and responsibilities actually are.

In fact, there is no definitive list of all of the things that are covered by the term ‘parental responsibility’.

Parental responsibilities

The responsibilities of a parent are many, and compiling a comprehensive list would be impossible. However, the following are generally accepted as being included:

Duty to maintain – a duty that carries on, of course, even when the child no longer resides with that parent.

Education – including in particular, choice of schools.

Religious upbringing – obviously, only usually an issue when the parents do not share the same religious faith.

Medical treatment – i.e. the responsibility to make decisions regarding the child’s medical treatment.

Choice of surname – The right to choose the child’s surname, which can only be changed with the agreement of the other parent or by a court order, where the other parent has parental responsibility.

Removal of the child from the jurisdiction – this also requires the agreement of the other parent with parental responsibility, or a court order.

Consent to adoption – a child can only be adopted with the consent of any parent having parental responsibility, or if the court dispenses with that consent.

The above raised the obvious question: what if both parents have parental responsibility and they cannot agree upon a particular issue relating to their child?

The answer is that either may make an application to a court for a specific issue order, determining that issue.

Getting (and losing) parental responsibility

So how is parental responsibility acquired?

The answer differs for mothers and fathers. (Note that parental responsibility can be granted to someone who is not the child’s parent, but what follows is only concerned with the mother and father.)

The mother always acquires parental responsibility automatically, and this can only be removed by the making of an adoption order.

Where the child’s parents were married or in a civil partnership at the time of the child’s birth, then the father will also automatically acquire parental responsibility, and again this can only be removed by the making of an adoption order.

Where the parents were not married the father will acquire parental responsibility if he was named on the child’s birth certificate, if the parents both sign an agreement granting him parental responsibility, or if the court grants him parental responsibility by making an order. Such an order will be made in most cases.

An unmarried father will also acquire parental if the court makes a child arrangements order stating that the child should live with him.

Finally, where the father has acquired parental responsibility by registration, agreement, or court order it can subsequently be revoked by the court, although this will normally only happen in exceptional circumstances.

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