What is Parental Responsibility?
When a relationship breaks down, the situation is always stressful. Add to that the breakdown of a relationship involving children, and the result is often an emotional turmoil which can skew the judgement of both parties.
Whether a couple is separating or divorcing, parental rights and responsibilities are always a major concern.
What do parents need to understand about their legal duties and rights, so that they can resolve their situation with the best interests of their child in mind?
What does ‘Parental Responsibility’ mean in Family Law?
Under section 3(1) of the Children Act 1989, ‘parental responsibility’ is defined 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”.
The Act places more emphasis on the parents’ responsibilities to the child, than their rights over the child. Having said that, obviously a parent must often exercise their parental rights to allow them to meet their parental responsibilities.
A parent is responsible for their child, unless they lose their parental responsibility, until that ‘child’ turns 18 years old.
The areas covered by ‘parental responsibility’ in raising a child are far-reaching, ranging from schooling, to medical treatment, and even in relation to what religion, if any, a child is raised as.
There are however also limitations. Legally, parental responsibility does not necessarily mean that a parent has the right to have contact with that child, to know of the location of other individuals who have parental responsibility for the child, or to know the child’s home address.
Who has parental responsibility?
- Mothers and married fathers have automatic parental responsibility and will not lose this if they separate or divorce.
- Unmarried fathers whose child was born before 1st December 2003 and whose name appears on the birth certificate do not have parental responsibility.
- Unmarried fathers whose child was born after 1st December 2003 and are registered on the birth certificate have parental responsibility.
- For unmarried fathers whose child was born before 1st December 2003 and who were not named on the birth certificate, they may re-register the birth to include the father’s name. Once their name appears on the child’s birth certificate through re-registration, they will then have parental responsibility.
- Step-parents do not have parental responsibility, unless gained by other means such as a parental responsibility agreement or through a court order.
- Grandparents do not have parental responsibility, unless gained by other means. They do not have an automatic right to see their grandchildren after a separation.
- Co-mothers or non birth mothers may have parental responsibility if in a civil partnership with the mother, registered on the English or Welsh birth certificate, they have signed a parental responsibility agreement with the mother, or a parental responsibility order has been made in their favour by the court.
What separating and divorcing parents need to know about the position in family law
If you are going through a separation, some of the legal points you will need to consider with the help of your legal adviser will include:
- Which of you has parental responsibility?
- Do either of you want and/or require a court order to obtain parental responsibility?
- If you separate from your partner, will you lose parental responsibility?
- If you are the lone partner with parental responsibility, do you wish to prevent your ex partner from obtaining parental responsibility?
Financial arrangements for your child
Parents are responsible for their child until that child turns 16 years old, or 18 years old if they are still in education.
How will you both pay and provide for the upkeep of your child? This will include, but not be limited to,
- providing a home for your child
- whom they will live with
- contact with the parent the child does not live with
- any other financial provisions or matters.
- Where will you both live?
- Who will your child live with?
- Who will remain in the family home, if anyone?
- If the family home is sold, how will the proceeds be split?
- What are the circumstances of a ‘new’ partner moving into the family home?
- Is the home mentioned in both partners’ wills? How will this change?
Statement of Arrangements
When entering divorce proceedings, you may be required to present a Statement of Arrangements, outlining the proposed arrangements for any child under 16 years old, and/or between 16 and 18 years old if still in education, in accordance with section 41 of the Matrimonial Causes Act 1973. Areas covered include, but are not limited to,
- where your child will live
- health arrangements
- financial upkeep
- contact with the non resident parent.
This was previously a mandatory part of any divorce case, but the Statement of Arrangements is no longer an automatic requirement since the Children and Families Act 2014 came into effect. However, it may still be requested and can be used as a way to gain clarity on the situation.
How will the courts come to their decision about my child?
Should you be unable to come to an agreement with your former partner on your child’s future, you may have to take the matter before the court who will make a ruling based on a number of factors,
- what the child wants
- the safety of the child
- the child’s needs, whether emotional, educational or physical
- how will any change in the child’s circumstances affect them?
- the child’s age, gender, character and history
- how able are each parent to meet their child’s needs?
Despite the individuality of each separate case, the court will always rule with the child’s welfare as their utmost concern.
What does family law say about contact?
Contact has now replaced the term ‘access’ and includes all types of contact:
- telephone call
- actual visits
Similarly, the term ‘custody’ has now been replaced by ‘residence’.
If you and your ex partner can’t come to an agreement on contact, then it is possible to obtain a Child Arrangements Order through the courts.
The Child Arrangements Order will cover:
- whom your child lives with and where
- when your child will spend time with each parent
- when contact will take place and in what way (email or physical visit, for instance)
Anyone with parental responsibility can apply for a Child Arrangements Order.
Without a Child Arrangements Order in place, a parent can, in law, refuse to allow their child contact with their other parent.
Why legal advice is critical
When you are going through a divorce or separation, especially when there are children involved, having legal advice reassuringly available at the end of a telephone line, email or in a meeting, can remove a great deal of the emotional upset involved in the process of the relationship split.
A solicitor who specialises in family law will have the legal facts at their fingertips, often about issues that you might not consider on your own, such as whether you have the right to stay in your family home or need to change your will.
If the level of animosity between you and your ex partner has reached the level whereby you just can’t talk anymore, then a solicitor can act as your go-between, removing any unnecessary arguments or unpleasant exchanges.
If your child’s welfare is paramount, then seeking legal advice can ensure that your child’s future is planned and arranged for correctly and smoothly the first time round.