Many parents still talk of custody, but this is a term that has not been part of the law now for over 30 years. The concepts of “custody” and “care and control” were replaced in the Children Act 1989 by residence and contact orders (now themselves replaced by “live with” and “spend time with” orders) and the idea of parental responsibility was created.
What is parental responsibility?
Just what parental responsibility is has been hard to define. It has been described as a bundle of rights and responsibilities, owed to the child and not to the court. What might be easier to state is what holding parental responsibility entitles a parent to do or object to. Anyone who holds parental responsibility has to agree:
- To a change of name for a child under 18
- To a child leaving England and Wales permanently
- In some circumstances to a child leaving England and Wales for a holiday
They have the right to be consulted on matters relating to the child’s health, education, and welfare and so can object to:
- Medical treatment including vaccinations and counseling
- Choice of school
How does a parent acquire parental responsibility?
A mother acquires it automatically on giving birth to the child. A biological father who is married to the mother at the time of the birth, or who later marries her also acquires it automatically.
If the parents are not married, the biological father has to either be named on the birth certificate as the father (for children born after 1.12.2003) or enter into a parental responsibility agreement in the prescribed form or obtain an order from the court granting him parental responsibility.
Parental responsibility can also be acquired by people other than the child’s birth parents including step-parents, same-sex couples guardians, and those appointed by the court as special guardians along with the Local Authority in care proceedings but these are not matters dealt with in this article.
Can you lose parental responsibility?
Until recently this was thought to be almost impossible and it is still the case that birth mothers and married fathers will only lose parental responsibility on the making of an adoption order.
However, the decision by Mr. Justice Macdonald in the case of D v E and another in 2021 makes clear that the test as to whether to remove parental responsibility from a father who has acquired it by agreement or court order, is not “incredibly high” or to be made in “exceptional circumstances” as was previously thought to be the case.
In particular, within the 8 key principles the Judge used in that case, he said that if the circumstances of the case are such that the court would be very unlikely to grant parental responsibility (where it did not already exist) then that is likely to indicate that parental responsibility could properly be terminated.
Where a father is applying to the court for an order for parental responsibility, he would have to demonstrate that he has shown sufficient commitment to the child to justify being given parental responsibility and the court would have to consider the level of attachment between the father and the child. Very often the mother is seeking to remove parental responsibility because the father is failing to show any commitment to the child and because there is no relationship between them.
In addition, the judge noted that termination of parental responsibility may be appropriate where leaving the father holding it, would place the mother in “an intolerable situation”, presumably where the continued requirement to consult the father in relation to schooling and health issues could place her or the children at risk of harm.
This case does shift the advice likely to be given to mothers in the future as to their chances of success in removing parental responsibility from a father to whom they were never married, and who has no ongoing relationship with the child and we may see more applications now being made.
By Karen Anker, Family Solicitor at Cambridge solicitors Barr Ellison.
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