Terminating a parent’s parental responsibility in England and Wales is a serious legal matter and is only granted in exceptional circumstances. Here is an overview of the process and considerations involved:
What is parental responsibility?
Under the Children Act 1989, parental responsibility includes the legal rights, duties, powers, responsibilities, and authority a parent has for a child. This means those with parental responsibility make decisions about where a child should live, how to discipline a child, their education, their religious upbringing, changing their name, what medical treatment they receive, consenting to holidays abroad and generally anything else considered to be related to their welfare.
When does it end?
Parental responsibility ends when a child reaches 18, the child is 16 or 17 and marries, a child arrangements order ends or is discharged, or if a court makes an order terminating parental responsibility.
Who has parental responsibility automatically?
- a mother who gives birth to a child will have parental responsibility automatically as soon as a child is born. It is not quite as simple for the other parent and depends on whether they are married or not and whether they are on the birth certificate or not
- a transgender father who gives birth to a child (who would be referred to as the birth mother on the birth certificate)
- a parent who is married or in a civil partnership with the child’s mother when the child is born will automatically acquire parental responsibility for the child. Second female parents will automatically have parental responsibility in this circumstance
How else can you gain parental responsibility?
An unmarried father or second female parent can acquire parental responsibility by:
- marrying or entering into a civil partnership with the birth mother
- being named as the other parent on the child’s birth certificate or by re-registering the birth to record the same
- entering into a parental responsibility agreement with the mother; or
- obtaining a court order giving them parental responsibility
- by becoming the child’s guardian
- by adopting the child.
A person other than a parent can acquire parental responsibility if:
- they become a child’s guardian or special guardian
- they enter into a parental responsibility agreement with any/all people with parental responsibility e.g. a step parent
- they obtain a court order giving them parental responsibility
What about adoption?
The birth parent of an adopted child is the child’s biological or natural parent, but they are no longer the child’s “legal parent” and they do not possess parental responsibility as set out in the Adoption and Children Act 2002. It is possible for a legal parent not to have parental responsibility, for example, where it is terminated by the court, and it is possible for a person who is not a legal parent to have parental responsibility, for example, if they are appointed as the child’s guardian or special guardian, as referenced above.
Who can have parental responsibility terminated?
There is no provision for discharging the parental responsibility of a mother, a married father or a married second female partner, and the same applies to those in civil partnerships with the following caveats.
The parental responsibility of a mother can be terminated by way of a parental order under the (Human Fertilisation and Embryology Act 2008, section 54) or by way of an adoption order (Adoption and Children Act 2002, section 46(2)). The same mechanisms apply for the termination of a father’s parental responsibility or that of a second legal parent when married to/in a civil partnership with the mother of a child.
‘Jade’s Law’ suspends the parental responsibility of a parent who is convicted for killing the other parent with whom they have a child.
Any person with parental responsibility for the child, or indeed the child themselves, can apply to discharge parental responsibility held by a step-parent or civil partner who holds parental responsibility, a father who is not married to or in a civil partnership with the mother or a second female parent.
Grounds for termination
Section 4(2A) of the Children Act provides that a person who has acquired parental responsibility shall cease to have that responsibility only if the court so orders.
While it is rare for parents to lose their parental responsibility as the courts typically view the parent-child relationship as being beneficial to the child, there are some situations where the courts feel it is in the child’s best interest for a parent to lose their rights.
If an unmarried father acquires parental responsibility through a court order or by being named on the birth certificate after the 1 December 2003 then the court can revoke that parental responsibility on grounds such as serious harm or risk to the child, persistent neglect or abuse, the father poses a danger to the child or a history of serious violence.
Likewise, if step-parents or second female parents gained parental responsibility via agreement or court order, it can be revoked by the court if it is no longer in the child’s best interests.
Adoption is the most definitive way to terminate parental responsibility. Once a child is adopted the birth parents’ parental responsibility is completely extinguished and the adoptive parents gain full parental responsibility.
Within care proceedings, the local authority can apply for a care order which gives them shared parental responsibility but does not remove the parental responsibility of the parents, but puts restrictions over how it is exercised.
Terminating parental responsibility is always considered a last resort and only ordered when it is clearly in the best interests of the child. It is never something undertaken lightly.
Application process
You have to deal with the following, which is why it is useful to consult with a solicitor:
- determine if the application is legally permissible
- prepare the court application and a statement in support along with any documentary evidence to support your position
- the court will list the matter for a directions hearing and map out the timetable for the case moving forwards. If matters are not settled during the proceedings, the court will make a decision at a final hearing based on the welfare checklist under the Children Act 1989.
Key factors the court considers
The court will consider the following:
- the welfare of the child which is the court’s paramount consideration. The child’s safety, well-being and emotional needs come first. This includes considering the impact of continuing the legal link with the parent
- any evidence that the parent poses a physical, emotional or psychological risk to the child e.g. domestic abuse, criminal behaviour, neglect or abandonment
- the level of involvement – is the parent engaged or completely absent from the child’s life? The court is more willing to consider removal where the parent has shown no interest over time or where their involvement is disruptive or harmful
- whether the parent has used their parental responsibility appropriately in the past or misused it, e.g. blocking important decisions on schooling, medical treatment etc. Was the refusal malicious? Has the parent been obstructive or co-operative in the care of the child?
- how would removing parental responsibility affect the child both practically and emotionally. Is it likely to provide greater stability for the child or not?
- depending on their age, the child’s views may be taken into account.
Terminating a parent’s parental responsibility in England and Wales is a rare and serious legal action, only granted in exceptional circumstances. If you are considering this step, it is essential to seek professional legal advice to navigate the process effectively given the complexity. A family law solicitor can provide guidance, help prepare the application, and represent you in court.
