There will be a Backbench business debate on support for childcare and the early years in the Commons chamber on Monday 16th October. This debate has been sponsored by Robin Walker MP.
The Children Act 1989 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 his property” (section 3(1)).
Acquiring parental responsibility
Parental responsibility for a child may be acquired in several ways and by a number of different people (including a local authority where a care order has been made).
A child’s biological mother automatically acquires parental responsibility for a child. A child’s biological father also automatically acquires parental responsibility if they were married to, or civil partners of, the mother at the time of the child’s birth. Parents do not lose parental responsibility if they separate or divorce.
A father who is not married to, or a civil partner of, the mother at the time of the birth may acquire parental responsibility in several ways, including:
- Subsequently marrying or entering into a civil partnership with the mother.
- Being registered as the child’s father on the birth certificate (from 1 December 2003).
- Entering into a parental responsibility agreement with the mother.
- Successfully applying to the court for an order that they shall have parental responsibility (a parental responsibility order).
- In some cases, by being named in a child arrangements order. If the order is for residence, the court must make a separate parental responsibility order at the same time as the child arrangements order. If the order is for contact, the court may do so but does not have to.
Where a child has two female parents (under the Human Fertilisation and Embryology Act 2008) the parent who did not give birth to the child is treated broadly in the same way as a father in respect of parental responsibility. Further information, including on the acquisition by a step parent or another person, is provided in section 3 of the Library briefing: Children: parental responsibility – how it’s gained and lost, and restrictions (England and Wales).
Losing parental responsibility
The only circumstances where a child’s mother can lose parental responsibility is as a result of the making of an adoption order or a parental order (in respect of a surrogate child that the mother gave birth to). This is the same where a father or other parent was married to, or civil partners, of the mother.
Where a child’s father or other parent acquired parental responsibility through one of the other means outlined above (eg, by being named on the child’s birth certificate), they can lose parental responsibility through an order of the court to that effect.
Any person with parental responsibility, or the child themselves if they have sufficient understanding, may apply to the court to terminate a parent’s parental responsibility. The principles to be applied when a court is considering whether to revoke parental responsibility were summarised in a 2017 family court judgement. They include:
- It should be rare for a father not to be afforded the status of having parental responsibility for their child.
- When considering whether to revoke a person’s parental responsibility, the court’s paramount consideration must be the welfare of the child.
- There is no requirement for the court to consider the factors set out in section 1(3) of the Children Act 1989 (the ”welfare checklist”) but the court is not prevented from doing so.
- The principle that the court should not make an order unless it considers that doing so would be better for the child than making no order at all applies.
There are very limited cases where a court has allowed an application to terminate a father’s parental responsibility. They include:
- In a 1995 case, the court terminated the parental responsibility (acquired by a parental responsibility agreement) of a father who had been sent to prison for causing serious injuries to his child.
- In a 2013 case, the court removed the parental responsibility of a father who had been imprisoned for sexual abuse of his child’s half-sisters.
- In a further case in 2013, the court terminated the parental responsibility of a father who was serving a prison sentence for a violent attack on the child’s mother.
- In a 2021 case, the court terminated the parental responsibility of a father who had a significant offending history, including sexual offences against children.
Limiting parental responsibility
The court can also restrict a person’s parental responsibility by making an order that in some way restricts their rights in relation to the child (eg, a prohibited steps order under section 8 of the Children Act 1989). This applies also to people who cannot have their parental responsibility removed by the court (eg, mothers). In the 2017 case cited above, for example, the court made an order prohibiting a married father from taking any steps in the exercise of any aspect of his parental responsibility in relation to his children.
In addition, when a child is in the care of a local authority (as a result of a care order) the local authority has the power to determine the extent to which the child’s parents may meet their parental responsibility.
Hersham and McFarlane, Children Law and Practice, Division A, Section 3.
Commons Library briefing CBP-8760, Children: parental responsibility – how it’s gained and lost, and restrictions (England and Wales).
Children Act 1989, particularly sections 1-4A.
An overview of kinship care in England, including the different types of kinship care arrangement, support available for kinship carers, issues, and Government policy.
A Commons chamber debate on a motion on support for bereaved children has been scheduled by the Backbench Business Committee for Thursday 14 September 2023.