The Children Act 1989 defines ‘parental responsibility’ as being “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his [or her] property”. In truth, this is not the most practically helpful of definitions. That said, in my experience ‘parental responsibility’ is something that every parent seems to have his/her own subtly unique understanding of. Certainly, very few clients ever ask me to explain exactly what it means. They often want to know whether they have it, or whether their ex-partner has it, or whether they can lose it, or whether they can remove their ex-partner’s, or whether it means they can do a particular thing, or whether it means their ex-partner can do a particular thing… but as I say, a few clients ever ask me what exactly it means – and I’m glad they don’t because I’m not entirely convinced it ever has been, or can be, perfectly defined.
But what I do know a bit about, and what really matters I suppose, is the practical implications of having, or not having, parental responsibility. First and foremost, if you have parental responsibility you are entitled to be kept informed, and to have a say, in respect of any important decisions relating to your child. Of course, this does not mean, in practice, that every parent in the country with parental responsibility is always kept updated, and always given a say – and if you are in a situation where you are being side-lined, despite having parental responsibility, then there aren’t necessarily any quick and easy remedies. Still, if you have parental responsibility, you are at least theoretically entitled to be consulted and to have a say.
The sorts of decisions we are talking about here could include the following (although it is a far from exhaustive list):
- Which school a child should go to
- Whether a child’s name should be changed
- Whether a child should undergo certain medical treatment (perhaps if there are risks involved)
- Whether a child should be taken abroad (either on holiday or permanently)
- Whether a child should be raised in accordance with a certain religion
Basically, we are talking about any significant decision relating to a child (although, admittedly, ‘significant decision’ is itself a vague and unhelpful phrase!).
What having parental responsibility doesn’t give a parent, and this might seem odd, is a right to spend time with a child. It is entirely possible to conceive of a situation where a parent might have parental responsibility (and therefore a right to be kept informed and to have a say) but not spend any time with a child. And equally there will be parents out there who spend lots of time with a child but do not, for any number of reasons, have parental responsibility.
To confuse matters yet further, somebody not having parental responsibility does not necessarily mean that it would be right or wise not to consult that person in respect of important decisions! Certainly, in my experience the courts will often criticise a parent who did not at least seek the opinion of the other parent when an important decision was needing to be made, whether or not that parent had parental responsibility.
So, it’s probably fair to say that things aren’t entirely straightforward when it comes to parental responsibility. Accordingly, I will finish this post by addressing an aspect of parental responsibility that is a little more legally certain: namely, how you go about getting it.
Who has parental responsibility?
Well, the mother of a child automatically has parental responsibility and that’s that. If she is the birth mother, she gets parental responsibility. Simple as that.
Things are a little less straightforward for fathers, I’m afraid (although a discussion of the arguably discriminatory dimension of that is outside the scope of this post…). They are, however, a lot more straightforward than they used to be. Prior to December 2003, a father needed to either a) be married to the child’s mother when the child was born, or b) subsequently marry the mother, to acquire parental responsibility. Clearly this represented a large discrepancy between mothers and fathers, and quite rightly the law was eventually changed. Accordingly, since December 2003 fathers have acquired parental responsibility simply by virtue of being named as the father on the child’s birth certificate. You could legitimately argue, I think, that this still doesn’t represent full parity for fathers, and that fathers should automatically acquire parental responsibility in the same way that mothers do (subject, perhaps, to issues that might arise in some cases where there is uncertainty around who the biological father is?). But in practice these days it is increasingly rare to meet a father who doesn’t have parental responsibly one way or another.
Of those fathers who don’t have parental responsibility, probably the easiest way to acquire it – assuming there is no animosity between father and mother – would be for the parties to cooperate in getting the father added to the birth certificate. The other option would be for the parents to enter into a ‘parental responsibility agreement’, but it strikes me that if the parents agree that the father should have parental responsibility then the birth certificate route is probably best (not least because in most cases it is in the best interests of a child to have both parents named on his/her birth certificate).
If, however, a father does not have parental responsibility and the child’s mother does not want him to have it, then he will have to involve the courts (assuming he isn’t willing to concede the issue). The good news here – for the father, at least – is that in my experience the courts tend to take the view that it is usually in a child’s best interests for both parents to have parental responsibility and that there would need to be very good reasons for a father not to have it (and even then the court would probably first look at the possibility of regulating father’s parental responsibility (e.g. prohibiting him from contacting a child’s school if he had been doing so to a vexatious extent) rather than denying it him completely). Of course, there will be some cases, albeit rare, when a father ought not to have parental responsibility and a mother is acting entirely appropriately in seeking to prevent him from getting it.
Finally, I would just like to acknowledge that this article has focussed on parental responsibility in the context of mother and father parenting relationships being the most common parenting arrangement. There are different rules (although with considerable overlap) with regards same sex parents and I will look to address them in a separate article in the future. There are also routes for non-parents (e.g. grandparents) to acquire parental responsibility and, again, I will aim to address that in a future article.