Parental responsibility/parental responsibilities

This is a legal concept in the UK which refers to legal rights and responsibilities towards children. It gives you the rights to do such things as change the name of a child and consent to medical treatment, but also imposes obligations, such as providing a home for the child and bringing them up.

In England & Wales and Northern Ireland, this legal concept is referred to as 'parental responsibility', whilst in Scotland, it is referred to as 'parental responsibilities'. In this article we will refer to this collectively as 'parental responsibility'.

What is parental responsibility?

If the parents of a child are married to or in a civil partnership with each other or if they have jointly adopted a child, then they both have parental responsibility. This is not automatically the case for unmarried parents or in England and Wales if the mother and father are not in a civil partnership.

According to current law, a mother always has parental responsibility for her child. A father, however, has these responsibilities and rights only if he is married to or in a civil partnership with the mother, or has acquired parental responsibility for his child.

Living with the mother, even for a long time, does not automatically give a father parental responsibility. Parental responsibility does not always pass to the biological father if the mother dies and the parents were not married or in a civil partnership.

Parental responsibility has nothing to do with paying maintenance or child support. All biological or adoptive parents have a legal duty to financially support their child, even if they do not have parental responsibility. Nor does it make a difference if you are applying for contact or residence orders. The courts will always make these orders according to a child's best interest. The court generally considers it to be in the child's best interests for both parents to have parental responsibility.

Even if the father is not named on the birth certificate, he is not completely excluded if he has no parental responsibility. He still remains the biological parent and can apply to the court for:

• A parental responsibility order - to obtain parental rights over a child
• A residence order - so that the child can live with him
• A contact order - so that he can have regular direct contact with the child
• A specific issue order - this could be for a specific issue, to determine any dispute that he may have with the mother regarding the upbringing of the child
• A prohibited steps order (or interdict in Scotland) - which tells a parent what may not be done in respect of their child

How unmarried fathers can get parental responsibility

Unmarried fathers, or fathers not in a civil partnership with the mother at the time of the birth, can acquire parental responsibility for their children in several different ways. This procedure varies slightly depending on where you live in the UK.

England & Wales

Fathers can get parental responsibility by:

• Marrying or entering into a civil partnership with the mother of their child
• Getting a parental responsibility order from the court
• Entering into a parental responsibility agreement with the mother and having it recorded at court
• Being appointed guardian upon the death of the mother
• Getting a residence order from the court
• Registering or re-registering the child's birth jointly with the mother (after 1 December 2003)

Northern Ireland

For children born before 15 April 2002

Unmarried fathers not listed on their child's birth certificate can get parental responsibility by:

• Marrying the mother of their child
• Obtaining a parental responsibility order from the court
• Entering into a parental responsibility agreement with the mother in the prescribed form and having it recorded at court
• Being appointed guardian upon the death of the mother
• Obtaining a residence order from the court

For children born after 15 April 2002

Unmarried children can get parental responsibility by:

• Doing any of the things mentioned above
• Registering the child's birth jointly with the mother at the time of birth - this is now quite common and many parents choose to do this
• Re-registering the birth if you are the natural father

Scotland

For children born before 4 May 2006

Unmarried fathers not listed on their child's birth certificate can get parental responsibilities and parental rights by:

• Marrying the mother of their child
• By obtaining a parental responsibilities and parental rights order from the court
• Entering into a Parental Responsibilities and Parental Rights Agreement in the prescribed form with the mother which is signed by both parties and then registered in the public record of the Books of Council and Session
• Being appointed guardian upon the death of the mother
• Obtaining a residence order from the court

For children born after 4 May 2006

Unmarried fathers can get parental responsibilities and parental rights by:

• Doing any of the things mentioned above
• Registering the child's birth jointly with the mother at the time of birth - this is now quite common and many parents chose to do this
• Re-registering the birth if you are the natural father

Applying to the courts for an order for parental responsibility

What will the court consider?

England & Wales and Northern Ireland

A father can apply to the court to gain parental responsibility. In considering an application from a father, the court will take the following into account:

• The degree of commitment shown by the father to his child
• The degree of attachment between father and child
• The father's reasons for applying for the order

The court will then decide to accept or reject the application based on what it believes is in the child's best interest. If the court makes the order, he will have parental responsibility as if he was married to the mother at the date of the child's birth. If the parents are not living together when an order is made, the father may wish to apply for a contact order.

The court may be unwilling to grant parental responsibility to a person who does not have the mental capacity to fulfil the duties and responsibilities. The fact that the father is serving a term of imprisonment, for example, is not in itself a determining factor in whether the court will grant a parental responsibility order. The criminal behaviour may be relevant and the fact that his circumstances limit his ability to exercise responsibility.

Scotland

A father can apply to the court for an order for parental responsibility. It is likely that such an order would be sought when a father is seeking, for example, an order for contact or residence. The court will only grant such an order if it is considered to be necessary and that it is better that the court grant such an order than no order be made at all. The court must at all times consider what is in the best interests of the child. The court will consider a range of factors depending on the facts and circumstances of each case. It should not be assumed that the court will grant such an order simply because the father wishes to have it.

If the court makes the order, he will have parental responsibilities as if he was married to the mother at the date of the child's birth.

The court may be unwilling to grant parental responsibility to a person who does not have the mental capacity to fulfil the duties and responsibilities. The fact that the father is serving a term of imprisonment, for example, is not in itself a determining factor in whether the court will grant a parental responsibility order. The criminal behaviour may be relevant and the fact that his circumstances limit his ability to exercise responsibility.

Determining whether the applicant is the biological father of the child

In an application for a parental responsibility order, the first step is to establish who the natural father is. The court will ask the mother if she agrees that the person making the application is in fact the father. If she does not agree that the person making the application is the father, the court may order that there be blood tests.

If the court orders that there be blood tests, a small amount of blood is taken from the mother, the father, and the child. DNA is taken from cells in the blood and is profiled.

While DNA contains material common to all humans, some portions are unique to each individual. These portions, or regions, contain two genetic types (alleles) that are inherited from the person's mother and father. A person's DNA profile is made by investigating a number of these regions. In a paternity test, for example, the mother's DNA profile is compared with the child's to find which half was passed on by the mother. The other half of the child's DNA is then compared with the alleged father's DNA profile. If they don't match, the 'father' is excluded, which means he isn't the father of that child. If the DNA profiles match, the 'father' is not excluded - which means there is a high probability (more than 99 per cent) that he is the father. DNA tests such as this can't offer 100 per cent proof.

Once it has been established that in all probability the putative father is in fact the natural father, the court will consider if it is in the child's best interest for a parental responsibility order to be made. The court will consider the father's degree of commitment to the child and his current relationship with the child.

If the father obtains a residence order

If a father obtains a residence order in his favour, the court will at the same time grant him a separate parental responsibility order to enable him to carry out this responsibility. If the residence order is changed subsequently, the parental responsibility order will not automatically end.

Automatic acquisition of parental responsibility

A mother with sole parental responsibility may, under her Will, appoint the father as the guardian of her child. On her death, the father would acquire parental responsibility because he has acquired guardianship of the child.

As mentioned above, if the child's parents marry, the father will automatically acquire joint parental responsibility with the mother for any of their children. The step father does not acquire parental responsibility over his step children by marrying the mother.