Who is a parent? It seems an easy question to answer, doesn’t it?
The two humans who contributed their genetic material to produce the child surely!
If so who is the parent here? Is the mother the woman who gave birth to the child or the woman who donated the egg? Is the father the man who fertilised that egg but has never met the child nor contributed a penny towards its care or is it the man with no genetic link who has loved the child their entire life? Can a man who is not the genetic father of a child be the legal parent and if so in what circumstances?
Is contributing DNA the criteria by which you may call yourself a parent or is it your actions?
There is likely a great deal of dependence on your perspective here, your answer about who a child’s parents are if you were raised by your genetic creators might be different to that of a child raised by two people who have no genetic link to it, or who are a different race to the child, or who are both the same gender.
The law has had to decide how it deals with these sorts of questions and one way that it navigates through this increasingly foggy area is through the legal concept of Parental Responsibility.
Parental Responsibility is something that causes people a lot of confusion, many people believe the right to be a parent is something to be earned that could be taken away if a person doesn’t act as a parent should.
Is this how the law sees it? Find out below!
Table of Contents (Click to open)
What is Parental Responsibility?
The law 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 property
This is very general wording and intentionally so because when Parliament was considering the Children Act 1989 they refused to decide exactly what being a parent meant, they left that job to our courts.
But in truth, not even the courts who are tasked with making decisions about the execution of these powers and rights really know exactly what parental responsibility is, there is no comprehensive list of what those rights, powers and duties are, the courts are deciding as issues come to a head and decisions have to be made.
As such, we know something about what parental responsibility encompasses based on past decisions. Those undefined rights, powers and duties include, for example:-
- The right and duty to make decisions about a child’s education;
- The right to ‘possession’ of a child;
- The right to decide a child’s religion;
- The right to consent to medical treatment for a child;
- The right to consent to adoption;
- The right to choose a child’s name;
- The right to apply to a court for an order in respect of a child.
What parental responsibility is will evolve, new things will be added and existing thinking tweaked as courts are asked to consider the major decisions adults need to make about children, and of course, one of the big issues surrounding parental responsibility is who gets it.
Who has Parental Responsibility for a child?
There are lots of people who might need to hold or wish to wield parental responsibility for a child, the most common being mothers, fathers, immediate family members and local authorities.
All mothers get parental responsibility for a child automatically but only some fathers do.
To have parental responsibility for their child automatically a father must either have been married to the mother at the child’s birth or have been named on the birth certificate as the father if the child was born after 2002.
If a father does not meet either of these criteria he does not have parental responsibility despite the fact he may be a biological father in a long-term serious relationship with the mother and be fully involved in the child’s life.
The ways he can get parental responsibility for his child all require his asking permission for it, being scrutinised and having someone else decide if he may have it all on no greater basis than his gender and marital status.
The unmarried father must earn the right to equality and be proactive about doing so if he wishes the same legal right as the mother to make decisions about his own child.
He may do this in one of four ways:-
- By entering into an agreement with the child’s mother under s.4(1)(b) Children Act 1989;
- He can apply to the family court for a Parental Responsibility Order;
- He can be named as a person with whom a child lives in a Child Arrangement Order;
- He can adopt the child.
So already we can see that the layperson could be forgiven for being unsure about the concept of parental responsibility, no one can tell you exactly what it is, some people have it and some don’t, and we can’t really link it to being a parent because what a parent is is a grey area.
If that wasn’t confusing enough the situation becomes more muddled when we observe that Parliament and the courts also seem to be at odds in how it must be used!
Section 2(7) Children Act 1989 states…
Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility
This seems to be quite overt language, the word of Parliament booming down upon us saying that any person with parental responsibility can act alone and need not consult anyone else.
However the courts HAVE NOT interpreted the wording in that way, instead, they were equally clear, there is quite firmly a common law duty to consult on some aspects of parental responsibility.
So we have Parliament telling us we can exercise parental responsibility alone, the courts are telling us we have a legal duty to consult every other person with parental responsibility, what are we to do?!
Thankfully the courts stepped in and set out for us their orbiter views on this very issue.
In ‘Re H (Parental Responsibility)’ the Court of Appeal held that a father with parental responsibility would have to be consulted on “schooling, serious medical problems and other important occurrences in the child’s life‘.
This was expanded on in later cases, most notably in A v A (shared residency) by Mr Justice Wall, thanks to whom we have an actual list of things you are legally obliged to consult your ex on.
The list, which was set out in his judgement for the very reason of asserting the count’s view, establishes three categories that result in a clear indication of what a parent’s obligations are in exercising their parental responsibility. That list is:-
1. Decisions a parent can make without any consultation with their child’s other parent
- How a child is to spend its time with each parent (what each parent does with a child in their time and who with);
- The personal care of a child (what they eat, what they wear, how often they wash etc);
- What activities are undertaken including school clubs (Minecraft club or ballet etc);
- Generally engaging in religious and spiritual pursuits;
- Continuation of medical treatment already prescribed by a GP;
- The routine discipline of the child (not including smacking)
2. Decisions where you always need to tell your ex but you don’t need their permission and don’t need to take account of their views
- Medical treatment in an emergency;
- Booking a holiday or taking the child abroad during your agreed time with them;
- Planned visits to their GP and the reasons for that visit;
- A change of address within the local area where contact arrangements are not impacted.
3. Decisions where you need to make a decision in agreement with all people who hold parental responsibility
- The selection of which school a child is to attend;
- Applications to a school for an unauthorised absence and the reasons for that;
- Contact rotas in school holidays;
- Any medical and dental treatment beyond routine checkups;
- Circumcision and sterilisation; Immunisation;
- Stopping medication prescribed for a child;
- Attendance at school meetings and functions;
- The age at which the child can watch age-restricted films;
- Consenting to a child’s marriage;
- Changing a child’s name;
- Relocating the child outside of the local area or moving abroad
Whilst this list is useful and tells us how courts think parental responsibility should be exercised it’s difficult to enforce.
If your ex moves house and won’t tell you where to you can’t do much about that.
Ultimately if you want to enforce your parental responsibility you will need a court order.
This is best reserved for the big issues so if you want to send a child to a particular school or you want to stop them moving to another area you would need to apply for either a Specific Issue to be decided or request an order stating Prohibited Steps.
This adds to the public’s confusion about what parental responsibility is but what is clear from both the statute and the courts is that parental responsibility is designed to flow simply, both the executive and the judiciary seem to agree on this at least, and for those normal day to day decisions about children the people who care for children should be free to act alone, for the big decisions there is a duty to consult and where there is dispute the family court can be asked to decide for the parents.
Can you remove your ex's Parental Responsibility?
We get asked, a lot, if parental responsibility can be taken away…usually in the form of ”My ex is a useless #!@?, they don’t pay maintenance, they don’t see their child, they forgot their birthday, why should they get a say in their lives?”
That’s a reasonable question. If a parent is not in a child’s life why should they be allowed to hold the parent who is to account over which school they send them to or get to stop them going on holiday?
The problem is the person asking this question misunderstands what parental responsibility is.
Parental responsibility is not ours you see, it does not belong to us, it belongs to our children.
Asking if parental responsibility can be terminated because someone who holds it isn’t good enough is seeing parental responsibility as the assertion of a parent’s rights over a child and that is not what it is.
It is more of a legal concept focused on the parent’s obligations towards their child.
You cannot remove or surrender your parental responsibility, even if you want to, it’s impossible.
You can delegate it to a school or any other person but you are always liable for it and you don’t lose it if someone else acquires it.
The means by which parental responsibility can be lost are few and generally extreme, they include such scenarios as:-
- The child is adopted by someone else;
- The holder of parental responsibility dies;
- The child reaches the age of 18;
- The law under which you acquired parental responsibility is repealed.
Termination of parental responsibility by a court is rare and has resulted in some interesting case law that helps explain the thinking behind such decisions.
For example, in a case in 1998, a father killed the mother of his child in a brutal axe attack. Their young child was not only present and so witnessed this frenzied attack but was also injured by the axe being swung leaving the child permanently disabled, an offence for which the father received a life sentence.
The deceased mother’s family sought an order saying the child lived with them, to change the child’s name and to extinguish the father’s parental responsibility.
The court declined, the father had injured the child accidentally and there was a bond of attachment towards it…so killing the child’s mother, with an axe, and leaving the child permanently disabled isn’t sufficient enough to terminate parental responsibility.
In another case where a disabled father played an active part in his child’s life, parental responsibility was extinguished because the father’s mental health made him incapable of properly exercising it.
These decisions have provided something of a starting point for how the courts might determine removing parental responsibility.
More recently we have seen some clearer decisions.
For example, parental responsibility can be removed by a court where there is domestic violence that equates to a threat to life.
In A v D [2013] EWHC 2963 (Fam) a father’s parental responsibility was extinguished after he was convicted and imprisoned for a serious case of domestic violence. He had stabbed, punched and kicked the mother with the child present then burgled the family home after the mother and children had fled to safety and finally set fire to the police car sat outside the property for their protection.
The mother successfully obtained an order in respect of the 4-year-old child, permission to change the child’s name, and an order revoking the father’s parental responsibility.
The high threshold to terminate parental responsibility was met in this case and the orders were necessary to protect the mother and child from the father who posed a serious risk, especially after his release from prison.
The point here is that termination of parental responsibility is extremely rare. Prior to 2013, there were only 3 reported cases where a court had extinguished parental responsibility and they were in the most extreme of circumstances.
Someone being a bad or absent parent isn’t a good enough reason, the child needs to be at significant risk of serious harm if parental responsibility is not extinguished for a court to consider doing so.
Parental Responsibility and Fathers Rights
It is noted above and, no doubt, all over the internet, that whilst all mothers automatically get parental responsibility not all fathers do.
Those unmarried fathers who do not get parental responsibility automatically must earn the right to be on equal footing with the mother.
Many will say this is discrimination on the basis of a person’s gender and marital status. It is not.
Think about it… note which men get parental responsibility automatically and which men do not.
If a father is married to the mother he is presumably committed to her, to their relationship and to their child together. In this case, he is treated the same as the mother and is granted parental responsibility.
Outside of marriage though how is the law to know which children are the joyous result of a committed relationship with the mother and which children are the result of a spontaneous fumble after a fun night at the pub?
Who knows if the father has love hearts for eyes after that night or anticipates walking away and never seeing his new friend again?
The law knows that whilst he can walk away if he so chooses the mother cannot, so she gets parental responsibility automatically whilst the unmarried father needs to prove himself worthy of the honour, the law inserts protection for the child.
If the father has no involvement in the child’s life he cannot interfere with the decisions of the mother who is, but if he wants parental responsibility and asks for it then that’s a sign to the child that their father cares for them and the law is happy to reward that.
