Many parents assume that being named on a birth certificate automatically gives them the same legal responsibilities as the other parent. In some families, that will be the case, but there are circumstances in which a father or another parent may need to take additional steps.

Parental responsibility can also matter to a step-parent who has become closely involved in a child’s upbringing. Understanding who holds it, and how it can be shared, can help families make decisions with greater confidence.

What is parental responsibility?

Parental responsibility is the legal term for the rights, duties, powers and authority a parent has in relation to their child and the child’s property. In everyday life, it gives a parent a role in decisions about how their child is brought up.

The way parental responsibility is exercised will change as a child gets older; for example, a young child may need their parents to make most decisions for them, whereas a teenager’s own wishes will have greater practical importance.

Who automatically has parental responsibility?

The woman who gives birth to a child automatically has parental responsibility, and applies whether or not she is married to the child’s father.

A father will have parental responsibility automatically if he is married to, or in a civil partnership with, the child’s mother when the child is born. A child’s biological father can also acquire it by marrying or entering into a civil partnership with the mother after the birth.

An unmarried father can obtain parental responsibility by being registered as the child’s father on the birth certificate.

The position for a second female parent depends on the circumstances, including whether she is recognised as a legal parent and whether she was married to, or in a civil partnership with, the birth mother.

When might a father not have parental responsibility?

A father may not have parental responsibility if he was not married to the child’s mother and was not registered on the birth certificate. This can come as a surprise where a father has been closely involved in a child’s life and contributed towards their upbringing. It is important to understand that  a father who does not have parental responsibility still has financial obligations towards his child.

If there is uncertainty, the first step is to look at the child’s birth certificate and consider whether any subsequent agreement or court order has been made. The answer may also depend on where and when the birth was registered.

How can parental responsibility be obtained?

A parent who does not already have parental responsibility may acquire it by registering or re-registering the child’s birth, depending on the circumstances. There are also two other routes such as entering a  Parental Responsibility Agreement with everyone who holds parental responsibility or obtaining a Parental Responsibility Order from the court.

Other court orders can give someone parental responsibility too; for example, where a Child Arrangements Order says that a child is to live with a person who does not already have parental responsibility, that person will acquire it for as long as the relevant part of the order remains in force.

What is a Parental Responsibility Agreement?

A Parental Responsibility Agreement is a formal legal document through which a parent or step-parent can get parental responsibility without asking a judge to decide the issue. For example, an unmarried father who is not named on their child’s birth certificate can enter into a parental responsibility agreement with the child’s mother.

The agreement must be signed and witnessed at a local family court office, and two copies then sent to the Principal Registry of the Family Division in London for registration. Simply signing a letter between parents, or adding a provision to an informal parenting plan, will not have the same effect.

Once properly made, an agreement cannot normally be cancelled just because the adults later disagree. An application to the court would generally be needed to bring it to an end.

What is a Parental Responsibility Order?

A Parental Responsibility Order is made by the family court and gives parental responsibility to an eligible applicant. It may be needed when an agreement cannot be reached, or where the people concerned would prefer the court to consider the circumstances.

An order does not settle every question about the child’s upbringing, so if there is also a dispute about where the child should live or how much time they should spend with a parent, a separate order dealing with those arrangements may be needed.

What will the court consider?

Where a father applies for parental responsibility, relevant considerations include the commitment he has shown towards the child and the relationship between them. The court may also consider his reasons for making the application.

A father who has played a consistent role in his child’s life should be able to explain why formal recognition would help him support the child. However, a limited relationship will not necessarily prevent an application from succeeding, and the court will look at the reasons for that situation and what role the father proposes to play in future.

If there are allegations of domestic abuse, the court may need to understand whether giving the applicant parental responsibility could expose the child or the other parent to harm. The court will consider the evidence and the particular circumstances of the case before reaching a decision.

Can a step-parent acquire parental responsibility?

A step-parent does not automatically acquire parental responsibility simply by marrying, or entering into a civil partnership with, a child’s parent. This remains the case even where the step-parent lives with the child and takes an active part in their care.

An eligible step-parent may obtain parental responsibility through a formal agreement or a court order. Here, the step-parent must be married to, or in a civil partnership with, a parent who has parental responsibility.

Where the agreement route is used, all parents with parental responsibility must agree. If this cannot be agreed, the step-parent can apply to the court. Consider a child who lives with their mother and stepfather but also spends regular time with their father. If both parents have parental responsibility, the stepfather cannot acquire it by agreement with the mother alone. The father’s agreement would also be needed for that route, although the stepfather may ask the court to make an order if agreement is not possible.

It is important to understand that a person who lives with a parent but is not married to, or in a civil partnership with, them cannot use the step-parent agreement procedure.

Does parental responsibility mean a parent is entitled to contact or equal care?

Having parental responsibility does not automatically entitle a parent to an equal division of the child’s time, and arrangements should reflect the child’s needs and circumstances. A parent can have parental responsibility without the child living with them, and they can also have parental responsibility where contact is limited or, in some circumstances, where no contact is taking place at all.

That does not mean a parent without parental responsibility cannot seek time with their child. If suitable arrangements cannot be agreed, a parent may apply for a Child Arrangements Order to determine the matter.

Can parental responsibility be restricted or removed?

The court can restrict how parental responsibility is exercised without removing it altogether. A Prohibited Steps Order, for example, may prevent a parent from taking a particular action without the court’s permission.

This could be appropriate where there is a concern that one parent intends to remove a child from the country against the wishes of the other.

In some limited circumstances, parental responsibility acquired by a father or second female parent can be terminated by a court order. A step-parent’s parental responsibility acquired through an agreement or order can also be brought to an end by the court.

A parent cannot simply decide that the other parent has lost parental responsibility because they have separated or because the other parent has had little involvement in the child’s life.

If you would like advice on parental responsibility orders and agreements, or you are concerned about a decision affecting your child, please contact our team today. We can help you understand your position and consider the options available to your family.

View related pages: 

Child Arrangements Child Contact Disputes
Domestic Abuse & Child Arrangements Parental Responsibility Orders And Agreements
Parental Alienation & Family Law Child Residence & Living Arrangements
Supervised & Supported Child Contact Complex Child Arrangements Disputes
Varying & Enforcing Child Arrangements Orders Fact-Finding Hearings In Children Proceedings

 

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Children's Issues

The scenario below does not relate to any individual clients of ours but the facts and the outcomes relate to some similar experiences in our practice.

Scenario Analysis Example #1

The Scenario

Mr and Mrs H separated. Mr H moved a few streets away and their eldest boy (now 15) lived with him. The younger children (14 and 12) stayed with Mrs H but the children live near each other and attend the same school.

Mrs H remarried and wishes to move to her new husband's city. Mr H sought advice about residence of the other children. He told us the middle child wanted to stay at school with his friends.

Our Solution

There is no set age at which a child can "choose". Nevertheless in reality it would be hard for Mrs H to resist the 14 year old's wishes. We needed to be careful not to stress the children. Rather than issuing proceedingswe arranged mediation for Mr and Mrs H to discuss the issues.

We advised Mr H to be flexible regarding contact. They reached an amicable arrangement for all children to live with Mr H for the school week and half weekends; and flexible school holiday arrangements.

Henry Brookman Discusses: Childrens Issues

If you have questions, contact us now, we can help you.

Children's Issues FAQs

Here is a selection of common questions relating to how children are involved in and affected by the divorce process. If you have unanswered questions, please contact us using the form above or you can contact us here.

Who Can Apply For Child Arrangements Orders?

Either parent can apply for orders relating to children as well as anyone with parental responsibility for the child. Sometimes grandparents or other relatives ask us if they can apply for child arrangements orders. The answer is that they can but they need to clear an extra hurdle first by seeking the permission of the court to do so.

Can I Use Mediation To Settle Disputes About The Children?

Yes. Most child issues are settled through negotiation and mediation. Court is often seen as a last resort. The mediation process is less formal than the court process and many of our clients report that they find mediation less stressful than the idea of going to court. Agreeing arrangements also gives you more of a sense of control over the issues. And it’s possible to formalise anything you agree with your ex spouse through mediation by making the agreement part of a Consent Order.  Once you get this approved by a family judge it’s legally binding.

Do we have to go to Court to decide what will happen to the children?

No, in almost all cases this is not required. Typically, the parents agree and often formalise the arrangement with the assistance of their lawyer. Where parents agree there is usually no need for any court order at all. If the parents cannot agree it would then become a matter for the Court to decide.

Can I insist that I see my child on special occasions, such as birthdays?

Normally the non-resident parent will be able to agree to see their child on significant dates and occasions. This can either be agreed informally with the other parent but if there is a dispute then the non-resident parent could apply for a court order.

Can I take my child to live abroad after divorce?

Permission will be required from the other parent or via a court order. Taking your child abroad for longer than a holiday would be considered abduction and the other parent could apply to the Child Abduction Unit to have your child brought home.

What happens to step children regarding custody and maintenance?

If the step-parent has taken the role of parent during the marriage and their ex-spouse (the biological parent) is not able to provide for the child, the step-parent may then be required to pay child maintenance.  Whilst it is typical for the child’s biological parent to gain residence, this is not always the case. It will depend on how capable the parents are to provide for the child what is in the child’s best interests.

Does the CMS (formerly the CSA) have to be involved in deciding child maintenance?

No. Whilst you may use a CMS calculation to aid with deciding a maintenance payment figure, it is then common for a private maintenance agreement to be set up by your lawyers. The CMS or court do not then need to be involved. If required, 12 months from the agreement, the CMS can become involved if either party wishes it.

Can I change my child’s surname after divorce?

Changing your child’s surname would require the other parent’s written consent or a court order.

Will the family home be retained for the child to live in?

If it is in the best interests of the child to remain in the family home with one of the parents it is possible that the court will order the home to be retained for a set length of time.

Can I move with my child to another part of the UK?

If you are the resident parent, you do not need the other parent’s permission to move with your child within the UK. However, the other parent could request a court order preventing you from moving whilst the situation is looked at in more detail. In making a decision as to the child’s living arrangements, the court will always look first at what is in the best interests of the child.

Can I take my child abroad on holiday?

If you have a court order setting out that the child is to live with you then you do not need ask permission from the other parent to go on holiday abroad for up to 28 days. If you do not have a court order, you will require the permission of the other parent. If the other parent will not give permission, you can apply for an order to go on holiday with the child.

Will my ex-spouse having a new partner affect what contact they can have with our child?

Typically no. However, if you have good reason to be concerned about your child’s welfare with regard to your ex’s new partner, you could apply for conditions to be imposed upon the existing contact arrangements.

Can our child choose which parent they live with?

If the child is old enough and has sufficient understanding to state a preference, the court will take into account their wishes. It is however unlikely that the child will simply be asked to choose because it is an unfair question and the reasons behind a child’s answer may be mixed. The court will however also consider wider factors, including each parent’s ability to meet the child’s needs, the child’s safety and how the new change in circumstances may affect the child.

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About The Team

We are a specialist divorce and international divorce family law team, advising clients in the United Kingdom (specifically England and Wales) and throughout the world. We have a very people–orientated approach to working with clients. Henry Brookman has practised law for over 45 years, and our team has a wide range of skills and expertise. We are recommended by the Legal 500 and have been awarded the Law Society’s quality mark, Lexcel.

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Philip Morton

Recommended by The Legal 500, Philip is an expert in all areas of family law, including domestic and international financial disputes, fraud and commercial dispute resolution.

Partner

Henry Brookman

With over 45 years' experience, Henry Brookman is the senior member of the team. He is described by The Legal 500 as ‘shrewd, savvy, sagacious and highly experienced’.

Partner

Natasha Slabas

Expert in all areas of family law, often involving cases that have an international element, including work in relation to financial settlements following divorce.

Partner

Mark Rennie

Mark is the Group Head of the Horsham Family Law team. He specialises in all areas of matrimonial law, including complex divorce and financial disputes, and is recommended by The Legal 500.

Partner

Nigel Winter

A highly experienced solicitor, Nigel has expertise in collaborative law, divorce, contested litigation, relationship agreements, and children matters. Nigel is recommended by The Legal 500.

Partner

Samantha Jago

Partner at our Guildford office and recommended by The Legal 500, Samantha has specialist expertise in divorce, children matters, complex international cases, and is a trained mediator.

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Joanna Potbury

Family law specialist based in Brighton advising on divorce, cohabitation agreements, children, post-nuptial agreements, and domestic violence. Joanna is recommended by The Legal 500.

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Kevin Danagher

Kevin specialises exclusively in family law, advising on all aspects of relationship breakdown, divorce, same sex marriage, marital agreements, and international family cases.

Partner

Ella Welsby

Known for her sensitivity and discretion combined with significant expertise, Ella advises on all family issues including high-value and multi-jurisdiction divorce and complex financial and children matters.

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Gemma Garrett

Based in Horsham, Gemma is a specialist advising on all areas of family law including divorce and separation (often involving jurisdiction issues), complex financial matters, and children matters.

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Alicia Cenizo

Alicia is a Partner in the family team and advises on all elements of family law, particularly private children work, including matters with an international element such as relocation.

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Rachel Osgood

Rachel specialises in financial claims on divorce and separation with a particular emphasis on high value cases and those involving inheritances, family businesses and claims by adult children.

Partner

Nisha Tayal

With over 20 years of expertise in family law, Nisha specialises on all aspects of relationship breakdown and is trusted by clients for her discreet, tailored advice.

Family Director (filex)

Natalie Matthews Bunting

Natalie is a specialist in divorce and financial remedy, including high value cases involving multiple pensions, multiple properties and multiple businesses.

Senior Associate

Lauren Blythe

Lauren is a highly regarded specialist family law solicitor, based at our Guildford office. She advises on divorce, family finances, children matters, domestic abuse, cohabitee issues, and relationship agreements.

Senior Solicitor

Susan Hayes

Susan qualified as a solicitor in 1992 and is based at our Brighton office. She is a longstanding member of the Law Society Specialist Children Panel and Family Law Panel. Susan is also a trained Collaborative Lawyer.

Associate

Rachael Au

Rachael is a highly capable member of the family team in Brighton. She specialises in family law, advising on divorce, civil partnerships, financial matters, and children issues.

Associate

Alice Barrett

Alice advises and supports clients on a range of family law matters including divorce, separation, financial remedy, private children matters and emergency applications.

Associate

Amelia Groom

Amelia has experience across a full range of family matters, including divorce, complex disputes regarding finances that range from trusts through to cryptocurrencies, and arrangements for children.

Associate

Natalie Higham

Natalie is a Family Legal Executive who advises individuals on divorce, separation, financial remedies available to them on the breakdown of their relationship, and children matters.

Associate

Katie O'Kelly

Katie advises on a wide range of family law matters including co-habitation, divorce and separation, financial remedies, and private children law matters.

Solicitor

Sophie John

An experienced solicitor, Sophie advises on matters relating to divorce, financial separation in both marriages and cohabiting relationships and children arrangements.

Solicitor

Alex Robinson

Alex supports the family team on a variety of matrimonial and Children Act matters that are often complex and with an international element.

Paralegal

Michelle Davies

Part of the Family Law team, Michelle supports on a variety of cases involving divorce, finances, children matters and day to day enquiries.

Paralegal

Isabelle Basson

Isabelle is responsible for following up day-to-day enquiries, administrative case management and generally supporting the Family team fee-earners.

Paralegal

Amelia Mahraj

Amelia is responsible, in her current role, for dealing with day-to day enquiries, administrative duties and supporting fee earners.

Paralegal

Aimee Atalay

Aimee provides dedicated support to the Family and Contentious Probate teams across a diverse range of matters. Aimee studied Law and Criminology at the University of Kent.

Paralegal

Izzy Minor

Izzy Minor is a Paralegal in the Family Team, supporting fee earners, and is a qualified Advanced CILEx Paralegal (MCILEx), holding a Diploma in Law and Practice.

Paralegal

Madison Bryant-Pollins

Madison provides dedicated support to the Family and Contentious Probate teams, including case management and the provision of clear, empathetic assistance to clients.

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Victoria Delatouche

Victoria is a highly experienced Legal Secretary and a long-standing member of the team. She provides secretarial support for the office.

Secretary

Michelle Louison

Michelle provides secretarial support to Henry Brookman. A very experienced family law secretary, Michelle has worked in law for over 12 years.

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