Parental responsibility before a child is born

What is parental responsibility and who has parental responsibility for a child?

Parental responsibility comprises all of the rights, responsibilities, duties and authority that a person has in relation to a child and a child’s property. A person with parental responsibility for a child can make certain decisions about their care and upbringing. Important decisions in a child’s life such as medical treatment and schooling must be agreed by everyone with parental responsibility for the child. If these decisions cannot be agreed upon then a decision will be made by the court.

Some people acquire parental responsibility automatically when a child is born such as:

• the child’s birth mother;
• a transgender father who gives birth to a child; and
• a parent who is married or in a civil partnership with the birth mother when the child is born.

Other people can acquire parental responsibility as follows:

A parent who is not married or in a civil partnership with the birth mother can do so by:

• marrying or entering into a civil partnership with the birth mother after the child’s birth;
• being named as the other parent on the child’s birth certificate, or by re-registering the birth to record their name on the birth certificate;
• entering into a parental responsibility agreement with the birth mother which is then filed with the court; or
• obtaining a court order giving them parental responsibility.

Any other person can acquire parental responsibility if:

• they become the child’s guardian or special guardian;
• they enter into a parental responsibility agreement with any/all other people with parental responsibility which is then filed with the court; or
• they obtain a court order giving them parental responsibility.

Please note for the purposes of this article, we will refer to the person who is pregnant with the child as the ‘birth mother’ and the other biological parent as the ‘father’ but recognise that these definitions may not be accurate for all parents.

Who has parental responsibility for an unborn child?

In England and Wales an unborn child is currently not recognised as a legal person and accordingly no one has parental responsibility for the child until they are born. As such, it is the birth mother who has the right to make decisions about medical treatment during pregnancy and the responsibility for the unborn child’s welfare. A birth mother does not require the father’s consent to make medical decisions such as:

• whether to keep or terminate the pregnancy;
• whether to undergo prenatal testing; or
• whether to give or refuse consent to medical procedures during pregnancy.

The birth mother also does not require the father’s consent to make lifestyle decisions during pregnancy such as:

• travelling abroad;
• relocating to another part of the country; or
• relocating to another country.

It is important to note that decisions about relocating to another part of the country or to another country may require the father’s consent from the date the child is born. After a child is born it may be considered child abduction to take them abroad without permission of everyone with parental responsibility for the child or leave of the court.

Concerns about the unborn child during pregnancy

Where the birth mother’s actions or choices during pregnancy may endanger the child, Children’s Services may become involved. Whilst they cannot control the birth mother’s actions or decisions, they can monitor the situation and may decide to take action when the child is born.

If the birth mother has disclosed the name of the father to Children’s Services then they may contact him as part of their process. However, the birth mother is not legally obliged to inform Children’s Services of the name of the child’s father and Children’s Services are not required to try to locate him.

If the father is aware that Children’s Services is involved with the birth mother, he can contact them to express his wish to be involved in their process. However, Children’s Services may need to be satisfied that he is the biological father and/or that he will have parental responsibility for the child when it is born before they can work or share information with him.

Father’s rights before the child is born

Whilst the birth mother is pregnant, the father would need their consent to:

• be notified of and attend any midwife or medical appointments (even those directly related to the pregnancy);
• attend scans and receive copies of scan photos;
• receive information or access medical records relating to the pregnancy;
• be notified about the birth; and
• be present at the birth and visit the birth mother and baby in hospital after the birth.

If the birth mother and father are married or in a civil partnership, both parents will have to have their names registered on the child’s birth certificate. However, if the birth mother and father are not married it is up to the birth mother to decide whether she agrees for the father to accompany her to register the birth and be named on the child’s birth certificate. If the parents are not married, there is no legal requirement for the father’s details to be included on the birth certificate or for the child to be given the father’s surname.

As above, if a father is not married or in a civil partnership with the birth mother at the time of birth and is not named on the child’s birth certificate, they will not have parental responsibility for the child. If that is the case, steps will have to be taken to enable the father to acquire parental responsibility.

If a father does not have parental responsibility for their child, then they will not have any legal right to be involved in decisions such as about where the child lives, their education or medical procedures.

It is important to note that even if a father does not have parental responsibility for a child, he will still have certain legal duties towards the child such as paying child maintenance.

Surrogacy

In cases of surrogacy, the parties may wish to give thought to including some of the issues around pregnancy in a surrogacy agreement.

What can a father do?

Where prospective parents are not together or have separated during pregnancy, it is important for them to try to reach an agreement about the extent to which the father will be involved in attending scans and appointments, and making decisions about the pregnancy. It is also important to discuss well in advance and have a plan for the father’s involvement in the birth to avoid confusion and stress at the time.

If an agreement cannot be reached, the prospective parents may wish to consider attempting an agreement through mediation or with legal assistance. It is important to bear in mind that any agreement reached will not be binding but will ensure that everyone’s intentions and expectations are clear. That way, disappointment, potential conflict and misunderstanding especially at highly stressful and emotive times can be avoided.

Once the child is born, if one of the conditions above is met, the father will automatically acquire parental responsibility for the child and the right to be involved in certain decisions. Whether a father has parental responsibility or not, they can make application to court about the child from the day the child is born. Such applications may include applying for an order for the child to spend time with the father or to decide a specific issue in respect of the child, for example, whether the child should undergo medical treatment or whether the mother and child should relocate.

Conclusion

It is important that all prospective parents understand the legal intricacies of parental responsibility and their rights and obligations. It is important to consult with legal professionals and seek legal advice to fully comprehend and navigate these complex issues before a child is born. If issues or disagreements arise during the pregnancy, mediation or legal assistance may be required to resolve these.