Under section 3(1) of the Children Act 1989, Parental Responsibility (‘PR’) is the legal term meaning the rights, powers and authority of an individual concerning a child, as well as the responsibilities and duties of the individual towards that child. Section 2(5) of the Act permits more than one person to have PR for the same child. When a decision needs to be made about a child’s upbringing, such as which school they attend, what religion they may follow, or whether to undertake certain medical treatments, all individuals with Parental Responsibility may have an influence in that decision. However, the wishes and feelings of the child will not be unimportant, and in accordance with their age and understanding will be taken into account when making any decision. An older child’s wishes will have more of an impact on the decision made, given their greater levels of understanding.
The child’s birth mother will automatically have Parental Responsibility. By virtue of section 2(1) of the 1989 Act, the child’s biological father will have PR if he was married to the mother at the time of the child’s birth. Where the mother and father were not married, the father may still obtain PR in a number of ways, for example being registered on the child’s birth certificate, by court order, or where both the mother and father agree (note, agreement must be evidenced in a specific document, Form C(PRA1), signed and witnessed). The same applies in respect of same sex marriages and civil partnerships. If married or in a civil partnership at the time of the birth, the mother’s partner will also have PR.
The law governing same sex couples has been modified in recent years. Female couples can now include both their names on their child’s birth certificate without needing to register a male sperm donor. Upon registration, both female partners will be considered the legal parents of the child and will both obtain PR as a result. Note that where same sex female couples use a sperm donor, the donor will not be considered the legal parent of the child where the process of artificial insemination is undertaken, but a father who impregnates the mother through sexual intercourse will obtain status as the legal parent. This does not, however, mean that a father with legal status will automatically obtain PR, and the other methods discussed in this article should be explored.
Specific rules are applicable to couples who use a surrogate. In such cases, it will be necessary either to obtain a parental order transferring PR from the surrogate mother to the new parents. An application for such a court order must be made within 6 months of the child’s birth, and the child must have been living with the commissioning parents within that period. Note also that the surrogate mother must consent to the court order for transfer of PR to the commissioning parents. Alternatively the commissioning parents could adopt the child.
In cases of adoption, where neither partner is the biological parent, the formal court issued adoption order gives the adoptive parents PR over the child, and terminates the PR of the biological parents.
It is possible for persons other than the child’s biological parents to have Parental Responsibility, such as a child’s adoptive parent, step-parent, partners, family members or carers who are in involved in the care of the child, to bring an application to the court for PR.
Unless discharged, PR will run until the child reaches the age of 18.
It is possible to have PR discharged by making an application to the court. An application may also be made by another person with PR, or by the child in question (where they are mature enough and have sufficient understanding), to have a person’s PR discharged.
When making an order to grant or remove PR, the court must always give consideration to the paramount welfare of the child, and whether it is in the child’s best interest to make the order. However, it should be noted that it is only in very rare circumstances that PR will be removed, and there will need to be a cogent reason and supporting evidence for doing so. It is also possible, though equally rare, to curtail a person’s exercise of PR. It is generally accepted that it is better for the child’s welfare to have both parents retain their full powers under PR, but the court may limit a person’s exercise of powers where, for example, there is risk of harm to the child if the person in question has an influence over their upbringing (see the case of H v A (No.1)  EWFC 58 concerning curtailment of a father’s access to his children’s school reports following imprisonment for offences against the mother).
A surrogate mother is deemed to legally be the child’s birth mother, and therefore has PR. However, it is possible for a surrogate mother to appoint another to be the child’s mother, and obtain a court order deeming that person to have PR.
If Parental Responsibility has become an issue in your case, and you need specialist advice or representation, our dedicated team of skilled family practitioners will be able to assist. To get the best help and advice, contact our clerks using our online form or call 01273 810011.
Kayleigh McChambell | Family and Children
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