Parental responsibility

As a result of the Covid-19 pandemic, many councils have taken the decision to postpone birth registration appointments until further notice. Normally, births have to be registered with the local council within 42 days of the child being born. Aside from practical issues such as not being able to apply for a passport, this will result in unmarried fathers not having parental responsibility for the child until the birth is registered and only then if they are named on the child’s birth certificate.

The Children Act 1998 abolished the terms of custody, care and control and access and introduced the concept of “parental responsibility” which is defined as “all the rights, duties and powers, responsibilities and authorities which by law a parent has in relation to the child and his property”. For instance, all people with parental responsibility have the right to be consulted about important decision in the child’s life such as education, medical treatment, change of name and trips abroad.

The law relating to parental rights of same-sex couples is complicated and will be different for the various ways of having a child and the family structures. As such it will not be covered in this article, however, we are planning to write further articles to cover parental rights in more detail. If you are in a same-sex relationship and have questions about parental rights, please contact us on 020 3440 8000.

The woman who carries and gives birth to the child has parental responsibility for the child unless this is removed by a Parental Order or an adoption. If the birth mother is married or in a civil partnership her civil partner or spouse will have parental responsibility.

If the birth mother is not married or in a civil partnership the child’s father will not have parental responsibility.

A father who is not married to or in a civil partnership to the birth mother can acquire parental responsibility for his child in the following ways:

1. Being registered on the birth certificate as the child’s father;
2. If they are not currently named on the birth certificate, by re-registering the child’s birth with the child’s mother
3. Subsequent marriage or civil partnership to the child’s mother;
4. By entering into a parental responsibility agreement with the parent who has parental responsibility, usually the mother; 
5. By making an application to the court for a parental responsibility order.

Parental responsibility agreements

A parental responsibility agreement must be in a prescribed form and signed by both parties in the presence of a Justice of the Peace or a court official authorised to administer such documents. The mother must produce the full birth certificate and each parent must produce evidence of identity which bears their photograph and signature. The agreement must then be registered at court.

Once a parental responsibility agreement has been made it can only end by:

1. An order of the court made on the application of any person who has parental responsibility for the child;
2. By an order of the court made on the application of the child with permission of the court;
3. When the child reaches the age of 18.

Parental responsibility order

If the father without parental responsibility wants to share parental responsibility with the birth mother and she is not willing to agree to this, the father can apply to court for a parental responsibility order. Such an order will give him joint parental responsibility with the mother. The court will take into account the principle that the interests of the child are of paramount importance. The court will also consider whether the making of an order is better for the child than making no order at all.  Beyond this there are three criteria that have been developed by judges through case law in determining applications for parental responsibility in respect of a child’s father and these are:

1. The degree of commitment which the applicant has shown towards the child.
2. The degree of attachment which exists between the applicant and the child.
3. The reasons for the applicant applying for a parental responsibility order.

Where the court finds that a father’s reasons for wanting parental responsibility are ‘demonstrably improper or wrong’ or that the father intends to use parental responsibility for improper or inappropriate ends, for example, to try to interfere with and possibly undermine the mother’s care of the children, then the court retains the discretion to refuse to make an order. 

Our family team has accredited family law specialists with many years of experience advising on issues relating to children. Please contact our team if you are seeking assistance with parental responsibility on 0203 440 8000 or via our website.