Alternative Family Law Children

Parental Responsibility

Parental responsibility is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has”. It is hard to imagine a more circular definition. In practice is means that someone with parental responsibility has a right to take part in major decisions in the child’s life, such as schooling and whether the child should move abroad etc. In addition, parental responsibility is defined as “rights of custody” for the purposes of the Hague Convention on Child Abduction, which applies in all European Union, many Western and some other countries. This means that someone can only take the child permanently out of England and Wales with permission of all other people with parental responsibility or with permission of the court.

Before considering parental responsibility, you need to be clear about who the legal parents of the child areaccording to English law, which is not necessarily obvious in cases where a child is born to same-sex couples or through surrogacy.

Mothers

The mother always has parental responsibility, provided she is the legal mother of the child.

Co-mothers (Non-birth Mothers - “Other Parents”)

In English law a woman who is not the biological mother of the child can be legally the other parent of a child if she is the mother’s same-sex partner in a lesbian relationship (see legal paternity after sperm donation). Such a woman has parental responsibility in a very similar way as a legal father. This does not apply to an adoptive mother or a woman who is the mother of a child after a parental order made after surrogacy. Such a mother always has parental responsibility, whatever the gender of the other parent.

Child Arrangements Orders and Parental Responsibility

If the court makes a child arrangements order in favour of a person or persons providing the child lives with them(what used to be a residence order), they automatically have parental responsibility while that order is in force, even if they do not otherwise have parental responsibility. This is one of the two ways that a stepparent who is not married or the civil partner of the parent with whom the child lives could get parental responsibility.

Stepparents

Stepparents, i.e. the spouse or the civil partner of the father or the mother, can get parental responsibility by a similar parental responsibility agreement or by court order. This only works for spouses and same-sex civil partners and not for cohabitants. All parents who already have parental responsibility must sign the agreement. Therefore if the father already has parental responsibility and he refuses to sign, the mother’s spouse or civil partner would need to apply to the court for a parental responsibility order. The father’s (and the “second parent’s“) spouse or civil partner can of course also get parental responsibility in the same way.

If you and your partner are not married or civil partners and do not plan to change that, the only way for both to get parental responsibility is if the court makes a child arrangements order providing that the child shall live with both of you (what used to be a joint residence order).

Child Arrangements Orders and Parental Responsibility

If the court makes a child arrangements order in favour of a person or persons providing the child lives with them(what used to be a residence order), they automatically have parental responsibility while that order is in force, even if they do not otherwise have parental responsibility. This is one of the two ways that a stepparent who is not married or the civil partner of the parent with whom the child lives could get parental responsibility.

Stepparents, i.e. the spouse or the civil partner of the father or the mother, can get parental responsibility by a similar parental responsibility agreement or by court order. This only works for spouses and same-sex civil partners and not for cohabitants. All parents who already have parental responsibility must sign the agreement. Therefore if the father already has parental responsibility and he refuses to sign, the mother’s spouse or civil partner would need to apply to the court for a parental responsibility order. The father’s (and the “second parent’s“) spouse or civil partner can of course also get parental responsibility in the same way.

If you and your partner are not married or civil partners and do not plan to change that, the only way for both to get parental responsibility is if the court makes a child arrangements order providing that the child shall live with both of you (what used to be a joint residence order).