Family law operates on the principle that the welfare of the child is of paramount consideration. Within this framework, parental responsibility signifies not only the right to care for and make decisions regarding a child but also the duty to ensure the child’s well-being, education, and moral upbringing.
What is parental responsibility?
Parental responsibility, as defined by the Children Act 1989, includes all the legal rights, duties, and authority a parent has over a child and their property. It is separate from legal parentage—someone may have parental responsibility without being the legal parent, and vice versa.
The Act does not specify its full scope, but aspects of it has been recognised by the courts which includes for example, decision related to child’s education and medical treatment. People with parental responsibility can usually make everyday decisions independently, but major choices (like schooling) require agreement. If disputes arise, the court decides, prioritising the child’s welfare above all else. Parental responsibility ends when the child attains the age of 18.
How is parental responsibility acquired?
Parental responsibility can be obtained in various ways by different individuals. A child’s birth mother automatically has it from birth, as do fathers or second female partners who are married to or in a civil partnership with the mother. Unmarried partners do not gain it automatically but may acquire it, for example, by being named on the child’s birth certificate. Non-parents can also be granted parental responsibility.
Surrogacy and proposed reform
A surrogate mother is considered the child’s legal mother at birth, regardless of any genetic connection. The identity of the second legal parent depends on the specific circumstances.
After birth, the intended parents can obtain a parental order from the court, which transfers legal parenthood and parental responsibility to them.
In a joint report released in March 2023, the Law Commission of England and Wales and the Scottish Law Commission proposed reforms to Surrogacy Law. Their recommendations would allow intended parents to be recognised as the child’s legal parents from birth, removing the need for a parental order. The government has not yet formally responded to these proposals.
How is parental responsibility lost?
A child’s legal mother can lose parental responsibility only through an adoption order or a parental order (in the case of a surrogate birth). Both orders also remove her status as the child’s legal parent.
The same applies to a father or other parent who gained parental responsibility through marriage or a civil partnership with the mother at the time of the child’s birth.
If a father or another parent obtained parental responsibility by other means, it can be revoked by a court order.
Additionally, the court may limit a person’s parental responsibility without fully removing it, by issuing an order that restricts specific rights in relation to the child.
Changes that are expected (Reforms)
At present, the law assumes that maintaining contact with both parents is generally in a child’s best interests, although this can be limited if it harms the child’s welfare. The government has announced plans to repeal this provision of the Children Act 1989, aiming to enable faster decisions to restrict contact with abusive parents. While the timing of the change is not yet known, domestic abuse charities have welcomed the proposal.
If you need help understanding your rights and obligations as someone with parental responsibility or if you wish to understand if you have parental responsibility, one of our experts can help.
