Do you have the right to make decisions for your child?

It is often assumed that both parents automatically have the legal right to make decisions about their child. But that is not always the case.

Understanding who has parental responsibility is absolutely crucial to ensure that the child’s intended caregivers can make decisions and have a voice in decisions concerning their welfare. 

It is also important not to confuse parental responsibility with legal parenthood. You can read more about legal parenthood and how it differs here - The parenthood trap: the risks of private donor arrangements .

What is parental responsibility?

Parental responsibility is the legal term for the rights and responsibilities a person has in relation to a child. Practically, it gives someone the authority to make important decisions about a child’s upbringing, including matters such as:

•    Education
•    Medical treatment
•    Religion
•    Changing a child’s name
•    Relocating with a child

The above decisions are all significant to a child’s upbringing, and everyone who has parental responsibility should be consulted so that a decision can be made together. For example:

•    Which school should the child attend?
•    Should they have a medical assessment?
•    Should their last name be changed?
•    Should they move abroad?

If an agreement cannot be reached on these types of decisions, then an application to the Family Court will be needed to determine the issue.

Parents with parental responsibility are also automatically entitled to apply to the Family Court for orders about where a child lives, who they spend time with, and other important issues affecting their welfare. 

Who automatically has parental responsibility?

Unlike legal parenthood, where a child can only have two legal parents, there is no limit to the number of people who can hold parental responsibility for a child.

A child's birth mother automatically has parental responsibility from birth.

In many cases, a mother's spouse or civil partner will also automatically have parental responsibility.

This includes:

•    A husband or male civil partner.
•    A female spouse or civil partner, provided that specific legal requirements are met and the child was conceived through assisted reproduction treatment. 

Does an unmarried father have parental responsibility? 

If a child's parents are not married or in a civil partnership, the father does not automatically have parental responsibility.

However, it can usually be obtained by:

•    Being named on the child's birth certificate (in certain circumstances);
•    Entering into a Parental Responsibility Agreement with the mother; or
•    Applying to the Family Court for a Parental Responsibility Order.

The above methods apply not only to biological fathers but also to some non-biological fathers who are recognised as a child's legal father under assisted reproduction laws.

A common misunderstanding about birth certificates for fathers 

Many people believe that simply being named on a birth certificate guarantees parental responsibility forever. However, the position can be more complicated.

If a father is registered as a child's father but it is later established that he is not the child's biological father, the parental responsibility he believed he had, was actually never acquired in the first place.

This can come as a surprise to families who have assumed that being named on a birth certificate settles the issue.

Can an unmarried second female parent have parental responsibility?

Yes. A second female parent who is not married to or in a civil partnership with the birth mother may still be able to obtain parental responsibility, depending on the circumstances.

The rules are complex and it depends on how the child was conceived and whether the legal requirements surrounding assisted reproduction were properly followed.

Why does parental responsibility matter?

Parental responsibility can become particularly important when families separate and  there are disagreements about a child's upbringing.

Many parents are surprised to discover that the people raising a child, the people named on paperwork, and the people recognised by law do not always align.

Understanding who has parental responsibility is important to avoid confusion, conflict and, in some cases, costly court proceedings.

How can we help?

If you are unsure whether you or another parent has parental responsibility, or need help acquiring it, Isobel Massey and our specialist family lawyers can advise and support you throughout the process. Get in touch to discuss your situation.