Emma Collins discusses parental responsibility and what that means from a practical perspective for parents.
Hello everyone and welcome to Weightmans. I'm Emma Collins and I'm a partner in our national team of family solicitors and we are here to help you.
This is one of a series of Q&A podcasts that we have produced for parents to help them resolve disputes about their children on or after relationship breakdown.
Today we're looking at parental responsibility and what that means from a practical perspective for parents.
What is parental responsibility?
Parental responsibility or ‘PR’ is defined in law “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”.
PR is not the same as simply being a parent - biological parents might be without PR because they did not acquire it or because they lost it, and non-parents can hold PR for a child such, as the local authority a step-parent or a special guardian.
Who has parental responsibility?
Well, different rules apply to different categories of people. For example, the child's mother will always have parental responsibility; if the child's father is married to the mother when the child is born he will also have parental responsibility; an unmarried father however will not have parental responsibility automatically.
So how can you acquire parental responsibility? There are a number of ways that an unmarried father can acquire PR. The most common are: by marrying the mother; being registered as the child's father on the birth certificate (after the 1st December 2003); entering into a formal PR agreement with the mother, or by court order.
Same-sex parents have slightly different arrangements: where the child has two female parents, the woman who carried the child will have PR, applying the same rules as for any other mother. The second female parent will have PR automatically, if she is married to the mother or a civil partner at the time of the fertility treatment and consented to the treatment. If the female parents were not married or civil partners at the time of the treatment, but both the women consented to the second parent being treated as the child's second parent and neither were married or in a civil partnership with another individual, then the second parent will have PR.
A married step-parent, or civil partner, can obtain PR by entering into a PR agreement with the parent (or both biological parents, if both have PR) or by a court order. Unmarried parents have no such rights.
Adoptive parents acquire parental responsibility automatically as part of the adoption process.
Who can exercise parental responsibility?
In practice, any parent with parental responsibility can exercise it in the day-to-day care of the child without requiring the consent of the other parent with parental responsibility.
However, there are some crucial decisions which cannot be made without the consent of all parties with PR. These include choices around the child's education, name, religious upbringing and medical treatment. A parent with PR will usually be entitled to access information containing the child in relation to those key areas. Our website www.weightmans.com gives more information about these issues.
Travelling or moving to live outside the jurisdiction of England and Wales
These are key parental responsibility related issues. In everyday life, one of the most common issues that tends to arise, is when a parent wishes to travel out of the jurisdiction of England and Wales, either for a short trip a holiday or on a permanent basis. On our website please visit our video on child relocation, if you are considering a move or are concerned about the other parent’s plans to move away.
It is important to ensure that you obtain written consent from everyone with PR prior to travelling out of the jurisdiction of England and Wales. That's not necessary if that parent with care has a Child Arrangements Order (that the child ‘lives with’ them) in their favour. Such an order enables the parent to travel abroad for up to 28 days without requiring consent, and therefore can represent a significant advantage in cases where such consent may be difficult or impossible to obtain. We explain more about Child Arrangement Orders in another of our podcasts.
Can parental responsibility be lost?
No parent can surrender or transfer their parental responsibility. This reflects the legal reality that PR is about more than just ‘rights’ but about responsibilities too.
Mothers and married fathers cannot lose PR, save for where the child is adopted. However, the court can in exceptional circumstances make an order restricting the exercise of parental responsibility to such an extent that the order has the effect of removing that PR. This would usually be accompanied by an order running in tandem, providing that the parent retaining PR, and care of the child, can make any and all decisions for the child without recourse to the other parent, and that their consent alone is sufficient.
An unmarried father who has acquired PR by virtue of being on the child's birth certificate, by a formal PR agreement, or by a court order, can lose PR by order of the court terminating it.
Where two parents with parental responsibility cannot agree on crucial decisions concerning the child's welfare, such as which school they should attend, whether or not they have specific medical treatment, or whether or not one party should be permitted to travel abroad with the child, then proceedings can be brought for the court to make that decision. Another of our podcasts explains more about this.
The court's primary concern will be the welfare of the child, taking into account the statutory “welfare checklist”. The district judge or the magistrates will then make a decision which will be imposed on the parties by way of court order.
Thank you for listening. If I or any of my colleagues in the Weightmans family team can help further, please do get in touch. You'll find our details at the end of this podcast. When you need support with a family dispute, we will always look to resolve it sensitively and robustly, through constructive communication. We'll always help you to search for solutions which reduce conflict and costs, whether your case requires complex litigation or a non-court based approach. Thank you for listening.