A guide to parental responsibility
However, one thing that is relevant to every family dynamic is ‘parental responsibility’, the legal term for the rights, duties, and responsibilities that a parent or carer has towards a child.
In this blog, our children law solicitors explain the complicated process of establishing parental responsibility, and how we can support you in obtaining it.
What is parental responsibility?
Parental responsibility recognises your legal status as a parent and entitles you to be consulted, informed, and involved in the important decisions relating to your child. This affects the day-to-day decisions relating to a child’s care and upbringing before they are 18 years old, such as education, religion, and medical matters.
Is parental responsibility the same as legal parenthood?
No, parental responsibility is not the same as legal parenthood, and they do not necessarily assume the other.
Legal parenthood is primarily about status in law. Being a legal parent determines whether you are responsible for the child financially, whether your child will inherit your nationality, and whether you have the right to make applications to the court if there is a dispute concerning your child.
On the other hand, parental responsibility gives you the right to make decisions about your child’s care until they are 18. You can have parental responsibility without being a legal parent. For example, you may take care of a child born to a family member under a Special Guardianship Order, meaning that you would have parental responsibility for the child alongside their birth parents.
Who has parental responsibility?
If you’re married to the other parent when the child is born, you will both have parental responsibility, and this won’t change if you divorce or separate.
If you’re not married to the other parent, the birthing parent has sole parental responsibility from the moment the child is born. If you’re the non-birthing parent who is named on the birth certificate and was present to register the birth, you will automatically have parental responsibility from the date of registration.
If you’re the non-birthing parent who hasn’t participated in the child’s registration and you weren’t married to the birthing parent when the child was born, you can only acquire parental registration by way of a Parental Responsibility Agreement with the other parent, or if the court makes an order.
Similarly, if you’re a step-parent or a non-parent but a child lives with you under a Court Order, you can also acquire parental responsibility, in some circumstances.
Obtaining parental responsibility
If parental responsibility can be agreed upon, both parents will need to complete a Parental Responsibility Agreement. This needs to be signed and witnessed at the local family or county court before you send it off for registration. Our specialist family solicitors can support you through the entire Parental Responsibility Agreement process.
If you can’t agree on whether the other parent should have parental responsibility, and the assistance of a family mediator or family lawyer leaves this issue unresolved, you will need to make an application to the court.
In an application for parental responsibility, the court will try to establish:
- The nature of the applicant’s relationship with their child.
- The level of the applicant’s commitment to their child.
- The applicant’s motivation for applying for parental responsibility, and the parent’s reasons for opposing it.
It’s important to remember that there’s a very clear presumption in law that, if the situation allows, both parents should have parental responsibility for their child. If the genetic father makes an application for parental responsibility, this is very likely to be granted.
Can my child’s surname be changed?
If you and the other parent both have parental responsibility, neither parent can take steps to change the child’s name without the written consent of the other, or the permission of the court.
A parent with sole parental responsibility is entitled to change their child’s surname. However, we would encourage you to seek advice beforehand as this could have unexpected consequences. For example, even if the other parent is not named on the birth certificate and the birthing parent decides to change the name, this is likely to cause conflict and could lead to court proceedings if the matter cannot be resolved.
When agreeing on parental responsibility, the court will always prioritise the child’s best interests. The main deciding factor is always how involved the other parent is in their child’s life. If they’re in regular contact, it’s unlikely that the court will sanction a change of surname from one person’s surname to the other.
Arrangements for children after your separation
If you’ve made arrangements for your children, there’s no need to take further action. The court won’t make an order unless one is needed.
If you’re unable to agree on arrangements for your children yourselves, you could consider family mediation to help resolve your matter. Although you can apply to the court to settle the arrangements for your child, in most cases the court will expect you to have tried mediation first. Our Resolution Accredited Family Solicitors can put you in touch with Mediators who can run through your options and help you focus on finding practical, workable solutions to your family arrangements.
If mediation doesn’t work for you, you can make the following applications through the court:
- A Child Arrangement Order, to decide where a child will live and whom they will spend their time or have contact with.
- A Prohibited Steps Order, which prevents somebody from taking a particular course of action in respect of your children.
- A Specific Issue Order, to decide any particular issue concerning the children.
When the court is making a decision on your child’s care, the court will consider the unique factors of your family situation, such as the wishes of your child, their emotional and educational needs, your capabilities as a parent, the risk of harm to your child, and the effect of any change in their circumstances.
These factors are referred to as the welfare checklist.
Contact with your children
Your child has the right to maintain a relationship with both parents. The court will presume that the involvement of both parents in your child’s life is in the child’s best interests.
Research demonstrates that children generally perform better if they have parental involvement from both parents. Because of this, any parent who opposes the involvement of the other parent must show clear reasons why contact would put the child at risk of suffering harm.
What is the court procedure?
When obtaining parental responsibility, an application for a Parental Responsibility Agreement is made to the court. Either the court will make initial orders as to how they want the case to progress, or a first appointment will be arranged, which you must attend. The purpose of the first appointment is to determine whether an agreement can be reached outside of court.
At your first appointment, a Children and Family Court Advisory and Support Service (CAFCASS) officer and usually a Family Court Adviser (FCA), will be available. CAFCASS is an organisation used by the court to advise on the welfare of the child, and the FCA will review your case and support you in agreeing on parental responsibility.
If you can’t reach an agreement, the court will tell you how to proceed. This may include filing statements or requesting a report from a CAFCASS officer. A report can take 12-16 weeks to produce.
If a CAFCASS report is ordered, the case will be listed for a Dispute Resolution (DRA hearing). Whilst many cases are agreed upon at the Dispute Resolution Hearing, a final hearing date will be set if matters are not agreed.
If your case involves allegations of domestic abuse, further hearings might be required. This could potentially include a fact-finding hearing if the court needs to determine whether or not domestic abuse has been involved in either party’s relationship. These are complex hearings that can cause delays and see costs increasing quite substantially.