Parental responsibility includes the rights and duties a parent has for their child's well-being, like providing a home, making decisions about their education and health, and making sure they are supported financially.
Guardianship becomes relevant when a parent can't fulfill these responsibilities. They legally care for a child and make important decisions on their behalf.
In this article, we'll explain what parental responsibility means, who can have it, how it can be gained or lost, and how guardianship helps protect a child's future.
Table of Contents
- What does parental responsibility mean?
- What does guardianship mean?
- What is the difference between parental responsibility and guardianship?
- What are the parental rights of step-parents?
- What are the parental rights of second female parents?
- What is testamentary guardianship?
- What court orders can affect parental responsibility?
- What is the impact of care orders and emergency protection orders on parental responsibility?
- Can parental responsibility be terminated or limited?
- What are the legal procedures for challenging or modifying parental responsibility?
- How can a non-parent acquire parental responsibility?
- How can Lawhive Support?
What does parental responsibility mean?
Parental responsibility refers to the legal rights, duties, powers, responsibilities, and authority a parent has regarding their child and their child's property.
Key aspects of parental responsibility include:
Providing a home.
Safeguarding the child's welfare and making sure their needs are met.
Choosing and providing for the child's education, including which school they attend.
Consenting to medical treatments and accessing the child's medical records;
Deciding the child's name and agreeing to any changes.
Representing the child in legal matters.
Deciding the religion in which the child will be raised.
Mothers automatically have parental responsibility from a child's birth. Fathers have parental responsibility if they are married to the mother at the time of the child's birth or are listed on the birth certificate. Unmarried fathers can also acquire it through an agreement with the mother or by a court order.
Parental responsibility can also be granted to others through adoption, special guardianship, or child arrangement orders, which we'll explore further in this article.
What does guardianship mean?
Guardianship refers to a legal relationship where a guardian is appointed to make decisions on behalf of someone who can't make those decisions themselves.
Guardianship for children ensures that if something happens to the child's parents, there is someone legally authorised to take care of them. The guardian assumes the responsibilities of the parent, including making decisions about the child's education, health care, and overall welfare.
This appointment is often made in a will by the parents or, if no guardian is named, the court will decide who should take on this role.
What is the difference between parental responsibility and guardianship?
Parental responsibility is a broad, default set of rights and duties for parents, while guardianship is a more specific legal arrangement typically used when parents are unable to fulfill their role.
Parental Responsibility | Guardianship | |
|---|---|---|
Definition: | Legal rights and duties parents have towards their children. | A legal relationship where someone other than the parent is appointed to care for a child. |
Who Has It or Who Can Be a Guardian | Automatically given to mothers and, in certain conditions, to fathers. Can also be given through legal agreements or court orders. | Appointed by a court or nominated by parents in their will. |
Responsibilities: | Includes decision-making about education, health, and daily care. | Includes day-to-day care and important decision-making for the child. |
Duration: | Typically lasts until the child turns 18. | Can be temporary or permanent, depending on circumstances. |
What are the parental rights of step-parents?
Step-parents do not automatically have parental responsibility for stepchildren, even if they are married to or in a civil partnership with one of the child's biological parents.
However, a step-parent can acquire parental responsibility by entering into a formal agreement with the child's biological parents, providing all parties with parental responsibility consent. This agreement must be registered with the court to become legally binding.
Alternatively, a step-parent can apply to the court for a parental responsibility order or they can gain parental responsibility if they are named in a Child Arrangements Order as the person the child lives with. This responsibility lasts as long as the order is in force.
Adoption is another route for a step-parent to gain full parental rights.
For step-parents considering these options, consulting with a family law solicitor can provide clear guidance and support through the legal processes involved.
What are the parental rights of second female parents?
In UK law, second female parents (such as those in same-sex relationships) can acquire parental responsibility, but the specific rights and processes depend on their relationship with the child and the child's birth mother.
If the second female parents in in a civil partnership or married to the birth mother at the time of the child's birth and the child was conceived through donor insemination at a licensed clinic, they automatically have parental responsibility. Or, if the child was conceived through donor insemination at a licensed clinic and the second female parent is named on the birth certificate at the time of registration, this also grants them parental responsibility.
If the second female parent does not automatically have parental responsibility, they can get it by entering into a parental responsibility agreement with the birth mother. This involves completing a formal agreement, which must be signed by both parents and witnessed at a family court.
What is testamentary guardianship?
Testamentary guardianship allows a parent to appoint a guardian for their child in the event of their death.
The most common way to appoint a testamentary guardian is through a will. It takes effect only if both parents (or the sole surviving parent) die. Once appointed, the testamentary guardian has the same legal rights and responsibilities as a parent.
You can appoint anyone you trust who is over 18 years old as a testamentary guardian. However, it is advisable to discuss this with the person, or people, beforehand to make sure they are willing to take on this important role!
What court orders can affect parental responsibility?
Various family court orders can impact parental responsibility, either by granting it to someone who does not automatically have it or by altering the arrangements for those who already do.
Parental Responsibility Order
This order is issued by the court to grant parental responsibility to someone connected to the child who does not already have it.
It is typically used when parties can't agree on parental responsibility arrangements voluntarily.
Child Arrangements Order
Child arrangement orders decide where a child lives and the time they spend with each parent or guardian. It can grant parental responsibility to individuals with whom the child is ordered to live and lasts as long as the order is in force.
Special Guardianship Order
A special guardianship order places a child with someone who is not their parent, giving that person parental responsibility.
Prohibited Steps Order
This order prevents a parent from making specific decisions about a child without the court's consent.
For example, it might be used to stop a parent from taking the child out of the country or making changes to their education.
Rather than removing parental responsibility, a prohibited steps order limits how it is exercised.
Specific Issue Order
A specific issue order resolves specific disputes about the exercise of parental responsibility, like where a child should go to school or what medical treatment they should receive, without affecting the overall status of the parent's rights.
What is the impact of care orders and emergency protection orders on parental responsibility?
Care orders and emergency protection orders can significantly impact parental responsibility, particularly in situations where a child's safety and well-being are at risk.
Full Care Orders
When a full care order is issued under Section 31 of the Children Act 1989, the local authority is granted parental responsibility for the child.
This responsibility is shared with the parents but ultimately, the local authority has the final say on major decisions affecting the child's welfare until the child turns 18 or the order is discharged by the court or replaced by another order, like an adoption order.
Interim Care Orders
Interim care orders grant the local authority parental responsibility temporarily while investigations and care proceedings are ongoing.
During this period, the local authority must consult with the parents when making decisions, but if there is a disagreement, the local authority's decisions prevail until the court reaches a final decision after the care proceedings.
Emergency Protection Orders
Emergency protection orders are used in urgent situations where a child is at immediate risk of significant harm. It allows the local authority or other authorised body to remove the child from their current environment to ensure their safety.
An emergency protection order usually lasts up to 8 days but can be extended by the court for an additional 7 days, reaching a maximum of 15 days. During this time, the local authority shares parental responsibility with the parents but can make decisions necessary to protect the child.
Can parental responsibility be terminated or limited?
Terminating parental responsibility is a serious and rare action, typically reserved for extreme cases to protect a child's welfare.
Limiting parental responsibility, on the other hand, can be more common and is used to make sure a child's best interests are met without completely removing a parent's legal rights and duties.
Terminating parental responsibility
When a child is adopted, the parental responsibility of the birth parents is transferred to the adoptive parents. This is the most common and straightforward way parental responsibility is terminated.
It can also be terminated by the court in very rare and severe cases. For instance, if a parent poses a significant risk to the child's welfare due to abusive behaviour or criminal activity.
Limiting parental responsibility
Court orders such as prohibited steps orders and specific issue orders do not remove parental responsibility but limit its exercise.
As we've also discussed, both care orders and emergency protection orders can mean the local authority shares parental responsibility with parents or temporarily limits a parent's ability to exercise parental control.
What are the legal procedures for challenging or modifying parental responsibility?
Typically, a parent, guardian, or local authority can apply to challenge or modify parental responsibility.
The process begins by filing a petition with the family court outlining the reasons for the challenge. A court hearing will be scheduled where the court will evaluate whether continuing or modifying parental responsibility serves the child's best interests.
It's advisable to seek legal representation from a family law solicitor to guide you through these complex legal proceedings.
For further personalised advice and assistance, contact us today.
How can a non-parent acquire parental responsibility?
Parental Responsibility Agreement
Parental Responsibility Agreements are typically used by step-parents to acquire parental responsibility.
For this to happen, both the non-parent and the child's mother (or another parent with parental responsibility) must agree. They fill out a Parental Responsibility Agreement form, which is then signed and witnessed at a local family court.
Court Order
Any person who has a significant role in the child's life, such as a step-parent, grandparent, or guardian can apply to the court for a Parental Responsibility Order. This is often used when biological parents do not agree to grant parental responsibility voluntarily.
The court will consider the application based on the best interests of the child.
Special Guardianship Order
Individuals who need to take on a more permanent role in a child's life, such as relatives or close family friends, can apply for a Special Guardianship Order. This grants the non-parent enhanced parental responsibility without needing the consent of the biological parents.
This order is typically sought when the child needs long-term care outside their immediate family.
Adoption
Through adoption, the non-parent becomes the child's legal parent, and all parental responsibilities are transferred from the biological parents to the adoptive parents. This is the most permanent way to acquire parental responsibility.
How can Lawhive Support?
If you have any concerns or questions about parental responsibility, guardianship, or related family law issues, contact Lawhive today.
Our experienced network of family lawyers is ready to provide you with the advice and support you need to navigate these complex matters effectively.
Reach out to us for a consultation and ensure the best possible outcome for you and your family.