What is Parental Responsibility?
Parental responsibility is defined in law in England and Wales 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’. Those with parental responsibility can make decisions including where and with whom the child shall live and in relation to the child’s education, name, religion, medical treatment and travel abroad. There are various ways to acquire parental responsibility and in many cases, it is not automatic upon birth
Who receives Automatic Parental Responsibility?
1. A child’s mother shall automatically have parental responsibility for any child she delivers; and
2. A child’s father or second female parent, if married to the child’s mother or in a civil partnership with the child’s mother at the time of the child’s birth, shall automatically have parental responsibility by virtue of the marriage or civil partnership.
Non-Automatic Parental Responsibility: Fathers and Second Female Parents
If parents are not married or in a civil partnership at the time of the child’s birth, the child’s father or second female parent shall have to acquire parental responsibility in order to have the right to make decisions in respect of their child.
Where there are two female parents, if they are not married or in a civil partnership at the time of the birth, and the second female parent consents to the fertility treatment in line with the conditions set out in the Human Fertilisation and Embryology Act 2008, the second female parent may acquire parental responsibility for the child in the same way as an unmarried father (see below).
How can a Non-Married Partner acquire Parental Responsibility?
There are a number of ways to acquire parental responsibility, including the following:
1. Subject to being the biological father, the father can acquire parental responsibility by being named as the child’s father on the birth certificate. The second female parent may also acquire parental responsibility following being named on the birth certificate subject to compliance with legislation.
2. The father or second female parent can obtain parental responsibility by marrying the mother or entering into a civil partnership with the mother, subject to rules on domicile.
3. The parents can enter into a ‘parental responsibility agreement’, which is then filed at the Central Family Court.
4. The father or second parent may apply for and obtain parental responsibility order from court.
5. The child’s father or second parent will acquire parental responsibility by being named as a person with whom the child lives in a child arrangements order, or is otherwise named as a person the child shall spend time with and the court makes a parental responsibility order.
6. The father or second parent may adopt the child or become the child’s guardian.
Non-Automatic Parental Responsibility: Step-Parents
Parental responsibility can be held by any number of people and is not limited to being a parent of the child, for example, Local Authorities can have parental responsibility for children subject to care orders. The subsequent acquisition of parental responsibility shall not automatically extinguish the parental responsibility of existing parents.
How Can a Step-Parent acquire Parental Responsibility?
Provided the step-parent is married to or in a civil partnership with a parent with parental responsibility, there are a number of methods open to step-parents to acquire parental responsibility for their step-children, including the following:
1. The step-parent may similarly complete a ‘parental responsibility agreement’ form with the parent(s) holding parental responsibility, which may include their spouse/civil partner’s ex-partner, which is then filed at the Central Family Court.
2. The step-parent may be granted a parental responsibility order by the court.
3. The step-parent will acquire parental responsibility by being named as a person with whom the child lives in a child arrangements order, or is otherwise named as a person the child shall spend time with and the court makes a parental responsibility order.
If the step-parent is not married to the parent with parental responsibility, or there is another individual seeking parental responsibility of the child, that individual should investigate adopting the child or applying for a child arrangements order. That individual may acquire parental responsibility if they become the child’s guardian.
Parental Responsibility and Surrogacy
As the woman who gives birth to the child automatically obtains parental responsibility for the child, this means that surrogates (and their spouses/civil partners) will automatically have parental responsibility for the children they deliver. In these circumstances, a Parental Order will be required to extinguish the parental responsibility of the surrogate (and her spouse or civil partner) and for the intended parent(s) to acquire it in respect of the child. For more information, please read.
At Payne Hicks Beach, our expert family law team understands the complexities of blended families, co-parenting and acquiring parental responsibility. We can advise in relation to the various ways to acquire parental responsibility and assist if there is a need to enter into a ‘parental responsibility agreement’ and guide you through the process with sensitivity. Our team can also assist with the important final step in the intended parents’ surrogacy journey to secure their legal parentage. For further information, please contact Evelyn Collins, Associate in the Family Department or, alternatively, telephone on 020 7465 4300.
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Evelyn Collins is a member of the Modern Family team and advises in respect of surrogacy and fertility law. For further information, please contact Evelyn Collins, Associate in the Family Department or, alternatively, telephone on 020 7465 4300.
