Children
What is parental responsibility?
Parental responsibility is a legal term that refers to the rights and duties that parents have relating to their children. If you have parental responsibility, your most important roles are to:
- Provide a home for the child
- Protect and maintain the child
You are also responsible for:
- Choosing and providing for the child’s education
- Determining religion and its teaching
- Agreeing to the child’s medical treatment
- Naming and agreeing to any change of the child’s name
- Accompanying the child outside the UK and agreeing to the child’s emigration, should the issue arise
- Being responsible for the child’s property
- Appointing a guardian for the child, if necessary
- Allowing confidential information about the child to be disclosed
- discipling the child.
Parents have to ensure that their child is supported financially, whether they have parental responsibility or not.
Parental responsibility for separated parents.
If you have parental responsibility for a child but you do not live with them, it does not mean you have a right to spend time with your child. However, the other parent must include you when making important decisions about their lives, such as moving abroad, changing schools allowing or denying medical care.
If the decision is a major decision then the parents with parental responsibility must agree in writing.
You can apply for a specific issue order or prohibited steps order if you cannot agree. A Judge will then make a decision which is in your child’s best interests.
Who has parental responsibility?
A mother automatically has parental responsibility for her child from birth.
A Father usually has parental responsibility if he’s either:
- Married to the child’s mother
- Listed on the birth certificate (after a certain date, depending on which part of the UK the child was born in)
You can apply for parental responsibility if you do not automatically have it.
In England and Wales, if the parents of a child are married to each other at the time of the birth, or if they have jointly adopted a child, then they both have parental responsibility. Parents do not lose parental responsibility if they divorce, regardless of where the child lives.
This is not automatically the case for unmarried parents. An unmarried father has parental responsibility for his child in 1 of 3 ways:
- Jointly registering the birth of the child with the mother (from 1st December 2003). In Scotland (from 4th May 2006)
- Getting a parental responsibility agreement with the mother
- Getting a parental responsibility order from the court.
Same sex parents
Civil Partners
Same-sex partners will both have parental responsibility if they were civil partners at the time of the treatment, e.g donor insemination or fertility treatment.
Non-civil partners
For same-sex partners who are not civil partners, the 2nd parent can get parental responsibility by either:
- Applying for parental responsibility if a parental responsibility agreement was made
- Becoming a civil partner of the other parent and making a parental responsibility agreement or jointly registering the birth.
Apply for parental responsibility
If you are not the mother, you can apply to court to get parental responsibility. You need to be connected to the child, for example as their father, step parent or 2nd female parent.
More than 2 people can have parental responsibility for the same child.
Sign a parental responsibility agreement
If you are a father who wants parental responsibility and the mother agrees, fill in a parental responsibility agreement. There is a different agreement form for step parents. You then take the agreement to your local family court where it can be signed and witnessed. You should also take the child’s birth certificate and proof of your identity, like a passport or driving licence. You then send 2 copies of the form to:
Principal Registry of the Family Division
First Avenue House
42-49 High Holborn
London
WC1V 6NP
Apply for a court order
If you want parental responsibility but cannot agree on arrangements with the mother then you may need to apply for a court order. We can assist with both the application and any representation at court that may be necessary.
If you and your partner use a surrogate to have a child, you’ll need to apply for a parental order.
In considering an application for a parental responsibility order the court will take the following into account:
- The degree of commitment shown by the parent to his child
- The degree of attachment between the parent and the child
- The reasons for applying for the order.
- The court will then decide whether to accept or reject the application based on what it believes is in the child’s best interest.
What is a Parental Order?
If your child was conceived through a surrogate you must apply for a parental order or adoption if you want to become the legal parents of the child.
You can apply for a parental order with a partner or on your own.
Apply with a partner
One of you must be genetically related to the child- in other words, be the egg or the sperm donor. You must be one of the following:
- Married
- Civil partners
- Living as partners
You must also;
- Have the child living with you
- Reside permanently in either the UK, channel islands or isle of Man.
You must apply within 6 months of the child’s birth.
Apply as an individual
You must be genetically related to the child - in other words, be the egg or sperm donor.
You must also:
Have the child living with you
Reside permanently either in the UK, Channel Islands or Isle of Man.
From 4th July 2019 you must apply within 6 months of the child’s birth.
If neither you or your partner are related to the child, adoption is the only way you can become the child’s legal parent.
Adoption
If you are seeking to adopt a child that child must:
- Be under the age of 18 years when the application is made
- Not be (or have never been) married or in a civil partnership.
The marriage and Civil Partnership (Minimum Age) Act 2022 came into force on 27th February 2023 which means that 16 and 17 year olds will no longer be allowed to marry or enter a civil partnership, even if they have parental consent.
The child’s birth parents
Both birth parents normally have to agree to the adoption, unless:
- They cannot be found
- They are incapable of giving consent, for example due to mental disability
- The child would be put at risk if they were not adopted.
Who can adopt?
You may be able to adopt a child if you are aged 21 years or over and either:
- Single
- Married
- In a civil partnership
- An unmarried couple (same sex and opposite sex)
- The parent of the child’s parent.
Living in the UK
You do not have to be a British citizen to adopt a child, but:
- You (or your partner, if you are a couple) must have a fixed and permanent home in the UK, Channel Islands or the Isle of Man
- You (or your partner, if you are a couple) must have lived in the UK for at least 1 year before you begin the application process.
Early stages of adoption
To adopt a child you can go through either:
- An adoption agency thats part of your local council
- A voluntary adoption agency.
If the adoption agency says you cannot adopt and you disagree with the decision, you can either:
- Challenge their decision by writing to them
- Apply to the Independent Review mechanism, which will look into your case.
It is of course permissible to contact other adoption agencies - but this will mean you will have to re start the process again.
Applying for an adoption court order.
To make an adoption legal, you need to apply for an adoption court order. This gives you parental rights and responsibilities for the child.
We have over 30 years experience helping families such as yours in dealing with these situations. Please feel free to make an appointment so that we can discuss your requirements to make your family complete.
What is a prohibitive steps order and a Specific Issue Order?
A prohibitive steps order (PSO) is an order that stops a parent who has parental responsibility from doing something that is set out in the order. For example a prohibitive steps order can be used to stop a child from being removed from a particular parent’s care; preventing a child from being removed from the jurisdiction of England and Wales; or stopping a child being removed from their school or ensuring that a child’s name is not changed.
In some cases, we may need to act fast and make an application to the court without giving the other parent full notice of that application: Eg a parent is seeking to remove the child from the jurisdiction within the next 24 hours or so. In these circumstances the need to attend a mediation appointment before hand will be dispensed with. As each set of circumstances is unique, we would advise that if you have any concerns you contact us immediately so that we can advise on the appropriate course of action.
Specific issue Order
A specific issue order is a legal order determined an granted by the family court to resolve a specific disagreement or questions relating to children arrangements such as, education, medical treatment or contact.
It is a legal requirement to attend a MIAMS before you apply to the family court (unless you have a valid exemption),
A Specific Issue Order may last for as long as the court directs it to, but will not be enforceable after the child has reached 16 years of age, unless it is satisfied that the circumstances of the case are exceptional.
Child arrangements orders
A child arrangements order is a court order that sets out who has responsiblity for the care of a child, including who they live with and how often they will see/have contact with both parents.
These orders become necessary when parents cannot agree on where a child should live or whether they should see the non resident parents and if so for what duration. The purpose of the order is to ensure that the child’s welfare is the first and foremost consideration.
A child arrangement order can state:
- who the child lives with
- Where they live
- When and how the children see both parents
- Whether there are other types of contact such as phone calls, video calls or just letters and cards.
It is a legal requirement to attend a MIAM before you apply to the family court (unless you have a valid exemption). This is a meeting with an authorised family mediation to find out about:
- Mediation
- Other options to resolve your dispute without needing to go to court.
What does the court consider when deciding on such an order?
First and foremost, the court will consider what is in the best interests of the child using what is known as the welfare checklist, which considers the following:
- The wishes and feelings of the child concerned dependent upon their age and level of understanding
- The child’s physical, emotional and educational needs
- The likely effect on the child if circumstances changes as a result of the court's decision
- The child’s age, sex background and any other characteristics which will be relevant to the court's decision
- Any harm the child has suffered or may be at risk of suffering
- The capability of the child’s parents or any other person the courts find relevant at a meeting the child’s needs
- The powers available to the court in the given proceedings
Once the court has made an Order then that order becomes legally binding, and if a parent breaches it, they will be in contempt of court which could mean fines, enforcement orders unpaid work in the community or in extreme cases imprisonment.
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