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Who is a Legal Parent and Who has Parental Responsibility?

View profile for Wendy Parks
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Parental responsibility means all of the rights, duties, powers, responsibilities and authorities that a parent of a child has in relation to the child and his property by law. This is enshrined in law by section 31 of the Children Act 1989.

A person with parental responsibility stands in the shoes of a parent, but having parental responsibility is not necessarily the same as being a parent.  The principles governing the acquisition of legal parenthood are founded in both common law and statute.

At common law, the woman who carries a child and gives birth to it is the legal mother of the child in all circumstances irrespective of any genetic connection to that child.  This is reiterated in statute at section 33 of the Human Fertilisation and Embryology Act 2008.

The common law principles of the genetic father being the legal father applies, unless it is displaced by statutory fine framework as already set out in the Human Fertilisation and Embryology Act 2008.

Having or not having parental responsibility does not determine whether an individual is a parent of that child in law so, parental responsibility does not determine parentage.

The status of an individual as a child's legal parent is distinct from a parent holding parental responsibility.  It is possible therefore for a legal parent not to have parental responsibility, and it is also possible for someone who is not a legal parent to have parental responsibility.

Parental responsibility does not affect succession, citizenship and domicile.

So who has parental responsibility?

The child's mother would always have parental responsibility for her child as specified in section 2 of the Children Act 1989.  A transgender man who gives birth to a child will be registered as the child's mother on the birth certificate. This is because an acquired gender under the Gender Recognition Act 2004 does not affect a person parental status.

If a child's parents are married or in a civil partnership at the time when the child is born both of them will automatically acquire parental responsibility by virtue of section 21 of the Children Act 1989.  If the parents are not married or in a civil partnership with each other, than only the mother will automatically acquire parental responsibility.

The father can acquire parental responsibility if he does one of the following;

  • marries the mother or enters into a civil partnership with her
  • enters into a parental responsibility agreement with the mother and files it at Court
  • obtains a court order giving him parental responsibility
  • is named in a child arrangements order as the person with whom the child should live
  • is named in a child arrangements order as the person with whom the child is to spend time with
  • is registered at this child fathers on a register of births in the UK but note that the registration of a father requires the mother's consent and applies only if the child was born after the 1 December 2003 (it must be noted however that a person who is not the child's biological parent or parents by operation of the law will not automatically acquire parental responsibility by being named the child's birth certificate)
  • becomes the child's guardian
  • adopts the child.

In the case where there are two parents who are female, where a child is born by fertility treatment undertaken on or after 6 April 2009, they can become female parents under the Human Fertilisation and Embryology Act 2008.

The woman who carried the child is always treated as the mother and has parental responsibility in the same way as any other mother.

The second female parent is treated in a similar way to a father; she has parental responsibility automatically if she is considered a second female parent under section 42 of the Human Fertilisation and Embryology Act 2008 which applies if she was the mother's same-sex spouse or civil partner at the time of the fertility treatment and consented to that treatment.

If she is to be considered the second female parent under section 43 of the Human Fertilisation and Embryology Act 2008, she can acquire parental responsibility in the very same way as an unmarried father.

With regards to step-parents, parental responsibility can be acquired for a child if they are married to, or are a civil partner with, a parent of a child who already has parental responsibility and they do either of the following;

  • enter into a parental responsibility agreement with the parent or both parents and file it with the family court or;
  • obtain a court order giving them parental responsibility.

A step-parent can also obtain parental responsibility if they are named as either of the following in a child arrangements order;

  • A person with whom the child is to live or;
  • a person with whom the child is to spend time.

An individual other than a parent can acquire parental responsibility for a child if they adopt a child, become the guardian of the child or obtain a child arrangements order naming them as a person with whom the child is to live or to spend time with.

With regards to the latter that being the child arrangements order, that individual will only have parental responsibility for the duration of the child arrangements order and cannot make decisions about adoption and they cannot appoint a guardian.

A local authority will acquire parental responsibility for a child who is the subject of a care order.

More than one person can have parental responsibility for a child at any one time or at the same time, and a person with parental responsibility does not necessarily lose it simply because another person has acquired it.

If more than one person has parental responsibility, each can act independently of one another unless there is a statutory requirement to consult the others such as consent to take a child abroad (section 1 of the Child Abduction Act 1984) or consent to place a child for adoption.

So when does parental responsibility end?

Parental responsibility automatically ends when the child reaches 18 years of age. It could end prior to this by way of court order but even so, it is worth noting that parental responsibility diminishes as a child grows older even while the child is still under the age of 18.

In relation to surrogacy, parental responsibility would cease upon the making of a parental order. The parents of the child following a surrogacy arrangement would acquire parental responsibility alongside the making of such a parental order by a Court.

It is plain to see that being a parent or having parental responsibility are not always one and the same thing, and do not necessarily go hand in hand and this is an area of law with peculiar complexities. 

Should you require legal advice regarding who is a legal parent and who has parental responsibility in respect of your child, please do not hesitate to contact our family law solicitors at Gepp solicitors

This is not legal advice; it is intended to provide information of general interest about current legal issues.