In a previous article I explored applications to discharge parental responsibility with reference to B and C [2017] EWHC 3250 (Fam). Upon reflection, I should have firstly started by thinking about how it can be acquired (in the absence of agreement) so will remedy that with this post.
The Children Act 1989 section 3 defines parental responsibility as all “the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and [their] property”.
The importance of parental responsibility for both the parent and the child can be summarised with reference to Butler Sloss LJ in H (Parental Responsibility) [1998] 1 FLR 855 [at 858-859].
“Parental responsibility is a question of status and is different in concept from the orders which may made under s 8 in Part II of the Children Act. The grant of the application declares the status of the applicant as the father of that child. It has important implications for a father whose child might for example be the subject of an adoption application or a Hague Convention application. In each of those examples, a father with parental responsibility would have the right to be heard on the application. He would have the right to be consulted on schooling, serious medical problems, and other important occurrences in a child’s life.”
My colleague Kevin Jackson recently wrote an article on the rights and obligations of separated parents whom both have parental responsibility when making decisions about their child or children which is extremely useful to consider alongside this article.
In the event the parent does not have parental responsibility for the child (i.e., they are unmarried, not on the birth certificate, and there is no parental responsibility agreement), they can apply to the court to make an order that they acquire it.
A traditional scenario is where the father has not been involved in the child’s life for a significant period, and subsequently seeks to become involved as a parent against the wishes of the mother.
There have been modern scenarios also, for example, Re G (Children) [2014] EWCA Civ 336 concerned whether parental responsibility should be granted to an egg donor who donated eggs to her partner, who then used the eggs to give birth to twins with a third party.
Law and Procedure
A child arrangements order application can be made with a grant of parental responsibility being sought alongside long-term contact proposals.
In the absence of the court making an interim or final lives with order in favour of the party (thereby allowing them to automatically acquire parental responsibility), the court can still recognise the party as the parent of the child by way of granting parental responsibility.
Aside from the paramountcy principle, there is a lack of guidance from the Children Act 1989 itself on how to approach applications for parental responsibility. Subsequently, case law has had to fill the void and is often entirely fact-specific (with reference to the differing examples above).
However, a general starting point is Re H as above. A broad summary of the approach to be taken to applications for parental responsibility can be as follows:
- The degree of commitment to the child;
- The degree of attachment with the child; and
- The motivation behind the application itself.
These factors and the application itself can be considered throughout proceedings and will ultimately have to be seen through the lens of the child or children, the parties’ historic, current, and future relationship and any impact on the child or children, the applicant’s particular circumstances, and how the applicant may exercise any grant of parental responsibility as a starting point.
Courts will also be alive to how interim contact has progressed and whether any bond has developed between the applicant and child alongside the applicant’s long-term proposals for contact and any input from professionals (for example, any Section 7 Report).
Members of Becket Chambers are experienced in providing advice and representation in respect of all family matters. If you require advice, assistance and/or representation, please contact us on 01227 786331 or clerks@becket-chambers.co.uk
