Looking after our children is one of the most fundamental aspects of our society. Children are our future and it is our task to set them a good example, care for them and teach them how to adjust into capable adults who are equipped to bring up the next generation.
We hear so much in the press about cases of neglect and child abuse. We hear so much about gangs and criminal behaviour in teenagers and young children. We all know about increasing teenage pregnancy rates and the childhood obesity problem. The less obvious casualties of our modern society perhaps are the children with clinical addictions to iPads and computer games or the victims of cyber bullying.
If we, as parents, can set the right example for our own children and provide them with a safe environment in which to grow up, then that is perhaps the least we can do to ease society’s ills on a grander scale. The government has a greater job to do and the introduction of Parental Responsibility as a legal term is part of that work.
The term Parental Responsibility was introduced by the Children Act 1989. It represented a policy shift by the government away from the idea that parents have rights over their children to having responsibilities towards them instead.
The concept of Parental Responsibility becomes particularly relevant to families where parents are separated or divorced and more relevant still to situations where the parents have never been in a relationship.
What is Parental Responsibility?
It is a term which is used regularly by solicitors and by the courts, but what does it actually mean? The Children Act defines it 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’. This means that the person with Parental Responsibility can make all the day to day decisions in the child’s life such as what is on the menu for tea or whether to enrol in swimming classes on a Saturday. It also means that the person with Parental Responsibility takes responsibility for important decisions on religion, discipline, education or medical treatment for example. The type of decision to be made obviously changes as time goes by and of course the child will start to make his or her own decisions as he or she matures.
Who has Parental Responsibility?
This sounds like an obvious question but in reality, there is no straightforward answer. Married parents always have Parental Responsibility for their children. If the parents were not married at the time of the birth, only the mother automatically receives Parental Responsibility for the child. If the father is named on the child’s birth certificate then he acquires Parental Responsibility with the mother so long as the child in question was born after 1/12/2003. If he is not, he does not have Parental Responsibility unless:
– he and the mother enter into a Parental Responsibility agreement;
– he applies to the family courts for a Parental Responsibility Order;
– the mother or the court appoints the father as a guardian of the child and then the mother dies;
– the court makes a residence order in the father’s favour;
– he marries the mother.
It’s not only parents who can have Parental Responsibility for a child. Step-parents, grandparents, civil partners and local authorities can also acquire Parental Responsibility.
Let’s look at some examples.
Paul had a brief relationship with Jane which broke down after a couple of months. Three years on, Paul discovered that Jane had a baby. Paul believed that he was the father and a DNA test was done which confirmed his belief. Paul now wants to be involved in the child’s life.
Paul needs to check whether his name is on the child’s birth certificate. If it is then Paul is entitled to make decisions for and on behalf of the child along with Jane. If his name does not appear on the certificate, he should see whether he and Jane can agree that he should have Parental Responsibility. If they can agree, then they would need to enter into a Parental Responsibility agreement. If Jane objects, Paul would have to apply to the court for a Parental Responsibility order which would entitle him to joint Parental Responsibility with Jane. Paul should also consider making an application for contact if Jane is reluctant to allow Paul to spend time with the child. The two applications are often made in conjunction with each other.
From Jane’s point of view, it will understandably be very difficult to let Paul into their lives given that he has had no prior involvement. However, Jane must try and think of this from the child’s point of view. Whatever Jane thinks of Paul, the child has a right to a relationship with his father. The court will consider all the facts of the case before making any orders and the overriding consideration will always be the best interests of the child. To assist the court a social worker or a member of the court’s advisory service (Cafcass) will investigate all the circumstances and visit all parties and the child in their home. They will report their findings to the court so that the judge or magistrates can establish whether a Parental Responsibility order and/or contact order, or any other order that the court has the power to make is in the best interests of the child.
Matt and Lisa married and had two children. Their relationship broke down and they separated. The children live with Lisa and stay every other weekend with Matt and his new partner Alison. Lisa has discovered that Matt has booked a holiday abroad for himself and Alison and plans to take the children in the school holidays. Matt has discovered that Lisa plans to move house and has applied to enrol the children in a different school.
Matt was married to Lisa at the time that their children were born. That means he has joint Parental Responsibility for the children, whether they are living with him or not. The issue here is the exercise of Parental Responsibility and this is the source of many arguments between separated parents. The law is not cut and dried in this area – how could it be? Every family has different dynamics and every child has different needs. In situations where the statute books are not clear cut, we turn to previous cases to see how similar situations have been dealt with by the court. One such case came before the High Court in 2011. This case gives comprehensive guidance on which decisions can be taken independently of the other parent, decisions where one parent would always need to inform the other but not necessarily consult them and decisions that must be made jointly. Booking holidays to take children abroad falls into the second category as long as the holiday occurs during time which has been designated as contact time with Matt. Organising contact rotas in school holidays falls into the third category.
Choosing a school for the children to attend falls squarely into the third category. Further guidance is given that if the school is a secondary school, the child’s own views must also be considered by both parents.
It looks as though Matt and Lisa will have try and put their own differences aside and have a discussion about these issues. If they are unable to agree between themselves or, with the help of a professional mediator or solicitor, one of them will have to make an application to court for a judge to resolve the issues. This should be an absolute last resort.
Christine and David have a 6 year old son, Mark, who is severely asthmatic. Christine and David are not married and were actually separated at the time of Mark’s birth. They reconciled soon after. David’s name is not on the birth certificate.
Technically speaking, if David’s name is not on the birth certificate and he is not married to Christine, he does not have Parental Responsibility for Mark. This means that he would not, according to the legal definition, be able to make important decisions about medical treatment, even on an emergency basis. In reality, whilst Christine and David are happy in their relationship, David is likely to be doing such things as administering Mark’s inhaler or any other medication, as a matter of course. It is only if Christine and David’s relationship breaks down that problems may arise. Christine could legitimately object to David taking decisions on Mark’s behalf even though he is Mark’s father. The best course of action for David would be to enter into a Parental Responsibility agreement with Christine now to prevent problems storing up for the future.
So, Parental Responsibility isn’t the simple concept that it perhaps sounds like it should be. It is what it says on the tin and lots more besides. Prescribing our parental responsibilities by law isn’t the answer to society’s wider problems but it reinforces what should be a natural instinct and moral obligation – to be a responsible parent and to do the best for our children. In an older case a judge speaking about a Parental Responsibility order said that a Parental Responsibility order “is designed not to do more than confer on the natural father the status of fatherhood which a father would have when married to the mother. There is also a sad failure fully to appreciate, when looking at the best interests of the child that a child needs for its self-esteem to grow up, wherever it can, having a favourable positive image of an absent parent; and it is important that, wherever possible, the law should confer on a concerned father that stamp of approval because he has shown himself willing and anxious to pick up the responsibility of fatherhood and not to deny or avoid it.”
For more information on Parental Responsibility go to https://www.gov.uk/parental-rights-responsibilities/what-is-parental-responsibility. The cases referred to in this article are cited at Re L  EWHC 394 (Fam) and Re C & V (Parental Responsibility)  1 FLR 392. For legal advice on this issue, contact one of our specialist family lawyers who will be able to assist you. Call Slater Heelis on 0161 969 3131.