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Parental responsibility - overviewMeaning and scope of parental responsibility
Parental responsibility is defined in the Children Act 1989 (ChA 1989) as all the rights, duties, powers and responsibilities and authority that, by law, a parent of a child has in relation to the child and their property.
Parental responsibility is commonly accepted to include, but is not limited to, the following:
the right and duty to care for the child and provide a home
to determine where the child should live
to ensure that if the child is of compulsory school age, they receive appropriate education
to appoint a guardian
to consent to medical treatment or obtain appropriate treatment for the child
to consent to the child's marriage
to name the child
to remove the child from the jurisdiction
The position at birth
Parental responsibility will be acquired automatically by:
a child's father and mother who are married to each other at the time of the birth
a mother if she was not married to the father at the time of the birth
a child's mother and the mother's civil partner who is a parent by virtue of:
the Human Fertilisation and Embryology Act 2008 (HFEA 2008) s 42, or
the HFEA 2008 s 43
Acquisition by unmarried fathers
It may be acquired by an unmarried father:
who marries the mother subsequent to the birth
who enters into a parental responsibility agreement with the mother
who, since 1 December 2003, becomes registered as the child's father under one of the enactments specified in ChA 1989
on an application to the court for a parental responsibility order
who is appointed as guardian on the mother's death
when the court makes a residence order in his favour
Acquisition by female parents
New provisions inserted in the ChA 1989 provide for acquisition of parental responsibility by a woman who is a parent by virtue of the Human Fertilisation and Embryology Act 2008 but who is not the civil partner of the mother at any time during the period prescribed. She may acquire parental responsibility by:
becoming registered as a parent
entering into a parental responsibility agreement with the mother
obtaining a parental responsibility order
taking office as the formally appointed guardian of the child on the mother's death
obtaining a residence order
Acquisition by step-parents
Under the ChA 1989, where a child's parent who has parental responsibility is married to, or is the civil partner of a person who is not the child's parent then:
both parents with parental responsibility may enter into a parental responsibility agreement with the step-parent
on the application of the step-parent the court may order that the step-parent have parental responsibility
Acquisition by others
Parental responsibility may also be acquired by certain other categories of people specified in ChA 1989, including a person:
who is appointed as a guardian
in whose favour a residence order is in force
A parental responsibility order can be made so long as the child is under 18. The court will take into account the degree of commitment shown by the applicant to the child, the degree of attachment and the reasons for applying. Where the father has shown commitment, there is authority that there is a presumption that a parental responsibility order should be made, this is subject to the paramountcy of the child's welfare. The court is not obliged to apply the statutory checklist, although it is likely to have in mind the relevant criteria.
Parental responsibility orders and agreements end:
automatically when a child reaches the age of 18
if the father marries the mother
if an adoption order is made
otherwise by an order of a court on the application of any person who has parental responsibility or, with leave of the court, on the application of the child
The exercise of parental responsibility in this area has been the subject of a wealth of case law. There is a statutory obligation on a parent to take steps to obtain appropriate medical care for a minor and, in exercise of their parental responsibility, the parent can give or withhold consent to treatment.
The court will become involved in situations where, for example, parents cannot agree on medical treatment and an application is made for an order under ChA 1989, s 8. Distinction is drawn between children who are under 16 and said to be Gillick competent, in accordance with the guidelines set down by the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority, and those not so competent. Account will be taken of the child's age and understanding of what is involved in the treatment and the overriding consideration of the paramountcy of the child's welfare.
The Family Law Reform Act 1969 applies different considerations in relation to children aged 16 and 17 who are able to consent to any surgical, medical or dental treatment as if they were of full age. They do not have the absolute right to refuse treatment and their refusal can be overridden by the court or their parents, and the court has power to quash their consent to treatment.
Exercise of parental responsibility
Where an issue arises about a specific question regarding any aspect of parental responsibility for a child or how a person exercises their parental responsibility for a child, an application may be made to the court for either a specific issue order or a prohibited steps order respectively. Alternatively, disputes may be dealt with within the context of an application for a residence order.
Parental responsibility may be delegated temporarily, but the responsibility for ensuring the arrangements are satisfactory remains with that person.
Right of independent action
More than one person may have parental responsibility for the same child at the same time. A parent does not lose parental responsibility if another person acquires it except in the case of an adoption order. Parental responsibility can be exercised unilaterally save in certain specific situations, eg consent to adoption, where the consent of everyone with parental responsibility is required.
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