What happens if you don’t have parental responsibility?
If you don’t have Parental Responsibility for your child, the right to make decisions that affect how your child is brought up won’t officially sit with you.
Of course, if you’re on good terms with your partner then you’ll no doubt make these decisions together, regardless.
But, if you were to separate, this is when it becomes tricky if you don’t have Parental Responsibility.
If you don’t have Parental Responsibility, the Courts won’t recognise you as the child’s father and you won’t have any legal right to be involved in any Court decisions about where your child lives, which school they go to, or what their surname should be, etc.
What is a Parental Responsibility Order?
A person who doesn’t have automatic Parental Responsibility of a child has the option of entering into a Parental Responsibility Agreement or applying to the Court for a Parental Responsibility Order.
The Court won’t grant a Parental Responsibility Order of any kind unless it’s satisfied that doing so will be better for the child than making no Order at all. This makes it clear that for an Order to be granted, there must be a strong argument that the Parental Responsibility should be granted to another person.
For instance, there would need to be some concern that the person/s who currently has Parental Responsibility for the child isn’t carrying out their responsibility properly, or that allowing the child to remain in their responsibility wouldn’t be in the child’s best interests.
In England and Wales, a Parental Responsibility Order is a Court Order which gives a person Parental Responsibility - which isn’t the same as being a parent. Instead, Parental Responsibility gives a person "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".
Parental Responsibility can be obtained by the Court making a Court Order called a Parental Responsibility Order.
An application can be made to the Court specifically for a Parental Responsibility Order, or the Court may automatically grant a Parental Responsibility Order at the same time as granting a Child Arrangement Order stating where a child is to live.
When does Parental Responsibility End?
In the UK, parental responsibility will automatically end when your child/children turn 18 years old. But this could also happen earlier, if your child were to marry between the age of 16 and 18 years of age.
Another time that a parental responsibility would end sooner is if an adoption order was put in place – meaning you lose all rights to your birth child.
Parents with children under the age of 16 are legally responsible for making sure that their child has a safe place to call home, but once a child turns 16, they are then allowed to move out – or be asked to leave their family home. If a parent asks them to move out, then they are still legally responsible for their child until they are 18.
Step-parent or same-sex marriage responsibility
If you’re connected to the child in some way, such as being their step-parent, a same-sex parent or unmarried father, and you want to ensure that you’re involved in important decisions in the child’s life, then you would need to apply for a Parental Responsibility Order.
Crucially, if you’re a father or same-sex partner who was never married to the child’s mother, nor have the intention to marry the child’s mother, and you weren’t included on the child’s birth certificate, then it’s unlikely that you have Parental Responsibility for your child.
If you’re an unmarried father or same sex parent, consider the following:
- If you’re making an application for a Child Arrangement Order stating that your child should live with you, and the Court grants this, then the Court must make a Parental Responsibility Order at the same time
- If you’re making an application for a Child Arrangement Order stating that your child is to spend time or otherwise have contact with you, then the Court may decide it’s appropriate to make a Parental Responsibility Order in your favour at the same time
If a child is born via fertility treatment after the 6th of April 2009, the child can have two female parents under the Human Fertilisation and Embryology Act 2008. The birth mother will be automatically given Parental Responsibility, and the mother’s partner will be named as the second parent (if they were married or in a civil partnership at the time of conception).
If a child is conceived via sperm donation, the birth mother will be automatically given Parental Responsibility, and the second parent will legally be the sperm donor. He will only be given parental responsibility, but, if he is named as father on the birth certificate.
How do I get Parental Responsibility for my Child?
The mother of the child will have parental responsibility automatically, but the father of the child will not unless they’re married to the mother at the time of the child’s birth. If not, the father will get parental responsibility by:
- Marrying the mother after the birth of the child
- Being named on the child’s birth certificate or re-registering to be added to the birth certificate with the mother’s permission or a court order
- Entering into a Parental Responsibility Agreement with the mother
- Getting a Parental Responsibility Order from the Court
- Getting a “lives with” Child Arrangements Order
A second female parent who was married to or in a civil partnership with the birth mother before the child is born will also have automatic parental responsibility. The only times where this wouldn’t apply is if the child was conceived through intercourse or if the birth mother’s partner didn’t agree to having a baby.
- If they’re not married, the mother’s partner will need to be named on the birth certificate of the child to get parental responsibility
For two male parents, if one is the biological father of the child and named on the birth certificate, he will get parental responsibility.
- If a surrogate was used, both parents would need to apply to court for a Parental Order
Step-parents won’t automatically get parental responsibility and marrying the child’s parent won’t change this. A step-parent can only get parental responsibility by:
- Adopting the child
- Entering a Parental Responsibility Agreement – you’ll need to be married to the biological parent who the child lives with and have permission from everyone with parental responsibility
- Getting a Parental Responsibility Order – you’ll need to be married to the biological parent for this
- Getting a “lives with” Child Arrangement Order
What happens if you are having parental disputes?
Many people assume that once you separate from a partner, argumentative negotiations or Court proceedings are inevitable, especially if there are children involved. But it doesn’t have to be that way.
Even if you no longer love each other, chances are you’ll both want the best for your child(ren). You may have different views, but as long as you can come to an agreement on child living and contact arrangements, there’s no need to go to Court. In fact, there’s no requirement to make a written agreement, although many separating couples find this helpful to minimise hostility.
Assuming both parents have Parental Responsibility, you have rights and responsibilities in relation to your child(ren), including making decisions in relation to a child’s:
- Health
- Education
- Religion
- Travels abroad
- Residence
For the separated parents’ relationship to work in the children’s best interests, both parents must recognise the importance of consulting the other parent, when making these important decisions. On the other hand, you don’t have to consult each other on every detail of how you care for the child(ren).
Too often the parents’ relationship is in danger of collapsing due to disagreements about minor issues or simply a different parenting style. Unless you are certain that the child’s welfare is at risk, you must try to allow your former partner to parent in their own way.
Shared Parental Plan
If you have decided to agree a Shared Parental Plan, you have a few options as to how to go about it.
- Private agreement
- Negotiate through Solicitors
- Mediation guided by a qualified family mediator
For the Shared Parental Plan to work, both parties must try to be reasonable and, above all, compromise. Remember that this is all about the children’s welfare and best interests, not point-scoring with your ex.
There is an assumption in the English Courts that, except in extreme situations, regular contact and a relationship with both parents is generally in the children’s best interests. The child’s wishes and feelings will be considered in accordance with their maturity. But professionals recognise that children can often tell parents what they want to hear as they tend to “people please” in the midst of a relationship breakdown.
The Shared Parental Plan should be designed to suit your children’s needs and your personal situation. Some parents prefer, and are practically able, to share care on more or less equal basis. It can be agreed for the child to live with each parent on an alternate week basis or rolling sequences of days (e.g., 2-2-3), or even to spend weekends and only some school nights with one parent and the rest of the days with the other.
Sometimes, less contact during school terms can be compensated with more holiday contact. But it’s down to the individual child. If there is more than one child, their individual stages of development will have to be considered, especially with very young children who are breastfeeding, for example.
Sharing care of the child doesn’t always mean that the child must spend 50% of their time in each parents’ home, as the line between having contact and sharing care of the child can be fluid and requires flexibility. It can be preferable to call the arrangements “shared” to help the parent who spends less time with the child to not feel undermined.
On the other hand, some parents will prefer the more traditional arrangement with one of them being the “primary carer” and the other having contact with the child, especially if work commitments dictate or new accommodation doesn’t provide the space. Every family is different.
If you are unsure which option is best for you, our Family and Child Law Solicitors can advise you on how to approach this discussion and what would be considered “reasonable” according to your situation.
Will the court be involved with parental disputes?
The Court has a “No Order” principle in relation to child arrangements and doesn’t want to be involved unless you require judicial help. You have autonomy within the confines of the law to parent.
This means that you can simply agree the child arrangements verbally or in writing, formally or informally. Sometimes, it’s a “suck it and see” process. But a written arrangement can make it easier as you can refer to what was agreed if there are any misunderstandings.
Any informal arrangements you make with the other parent remain “unenforceable” outside of a Court Order. This means that if one of you stops honouring the arrangement, there will be no legal consequences for breaching it.
It is estimated that the divorce rate in the United Kingdom currently sits at 42%; and whilst nobody likes to get divorced, it’s something that does happen more and more frequently. Those that are lucky to have an amicable divorce are able to have some sort of ‘smooth sailing’ divorce, but there are still many out there that are dealing with difficulties in regards to their relationship breakdown – and when children are involved, you may have to apply for a Child Arrangement Order.
In these circumstances, a Court would normally grant a Child Arrangement Order, as well as consider whether it is necessary to grant a Parental Responsibility Order. A Child Arrangement Order deals with where a child shall live and who they should spend time and have contact with. A Child Arrangement Order will usually remain in place until a child reaches 16, but in exceptional circumstances, it can remain in force until a child’s 18th birthday.
If the Court granted a Child Arrangement Order that said the child should have contact with their father but not live with him, then the father would still have the right to apply for a Parental Responsibility Order, but it wouldn’t automatically be granted.
If there is a Child Arrangement Order in place that specifies that the child lives with the father, then this would mean that a Parental Responsibility Order would be automatically granted. Nobody could apply to change or remove the Parental Responsibility Order whist the Child Arrangement Order remained in force.
How Simpson Millar Can Help You
If you are a mother, father, stepparent or anyone who has a close connection to a child in the family, then our Child Law Solicitors will be able to help you. We can ensure that you will be made aware of all laws relating to a child, and help you understand your legal rights. We have experience in helping families across the UK with cases like:
- Access to children/child contact
- Child custody
- Child abduction
- Parental alienation
- Child custody with no parental responsibility
- Parental responsibility
- Child maintenance
- Adoption
Your aims, mixed with the child’s best interested will be at the frontline of all decisions – and this will form the basis of the legal services that we can offer. Everything relating to your child is most certainly a sensitive subject, so we always approach every case with a caring and compassionate, yet personalised experience. Call our Child Law Solicitors today on 0808 239 3465, and let us help you.
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