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The Law Concerning Being a Parent

Parents in Law

The law relating to being a parent, parenthood, and parental responsibility can be confusing. For LGBT parents, we provide some information within this guide, but recommend you also refer to the organisation Stonewall who provide some excellent guides and support information.

1. The Legal Parents

A child can only have two legal parents. The legal parents have a duty to provide for their child. You become a legal parent by:

Being a legal parent confers a duty to financially provide for your child, and governs matters such as inheritance and nationality.

2. Holders of Parental Responsibility

Parental Responsibility affords the legal right to take decisions about such things as the children´s education, medical matters and religion. Having Parental Responsibility also grants you the automatic right to apply for, or to be involved in, court proceedings that affect the children. This can include matters such as adoption, contact issues involving other family members, international relocation, care applications by Social Services, changes to your child´s surname and appointment of a guardian in the event of the death of the other parent.

The birth mother always holds parental responsibility for the child. The biological father can acquire parental responsibility in a number of ways which we explain further on. Other adults can also acquire parental responsibility for a child, and again, we expand upon this below. There is no upper limit to the number of people who can acquire parental responsibility for a child.

3. The Psychological/Social Parent

The psychological/social parent is one who "...on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child´'s psychological needs for a parent, as well as the child's physical needs."1

Being the psychological/social parent does not automatically grant any rights or role in the child´s life unless you also have parental responsibility for the child and/or are the legal parent or have a court order made in your favour in respect of the children. However, in common law, the court does attach importance to the role of the psychological/social parent when considering whether to make orders in their favour (which might include orders for that person to have the child live with them, spend time with them, or in relation to applications for parental responsibility).

For non-biological parents, also make sure you refer to our specific case law library:

Non Biological Parent Case Law

1. Goldstein, Freud and Solnit in 'Beyond the Best Interests of the Child' (1973), referred to in Re G (Children) [2006] UKHL 43

Parental Responsibility (PR)

What is Parental Responsibility?

The legal definition of Parental Responsibility is "All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property."

Parental Responsibility is incredibly important. Most people think it simply grants a parent the right to make decisions about their children's schooling and medical matters.

Unless you hold parental responsibility for your child, you have no right to automatic involvement in some court proceedings. This might mean your not being notified of an application by social services to take your children into care, your not being notified of or involved in decisions as to whether your children are placed for adoption should something happen to their other parent or carer, and your consent need not technically be sought prior to the children being removed abroad.

If you do not hold parental responsibility for your child, their name can also be changed without your consent.

Does PR guarantee my inclusion in decisions?

Not necessarily. Each person with Parental Responsibility has the right to independently make decisions that affect their children. There is, however, an obligation on any person exercising a parental responsibility or parental right to have regard to the views of any other person with the same rights and responsibilities.

That said, there is no guarantee that people will respect your rights, even if they should. For this reason, parents might need to go to court to apply for a specific issue order if there is a serious matter upon which they disagree.

The court gave useful guidance upon matters which people with parental responsibility should liaise, and which matters upon which they can take independent decisions in the judgment A v A [2004] EWHC 142 (Fam) at paragraph 133:

1. Decisions that could be taken independently and without any consultation or notification to the other parent.

2. Decisions where one parent would always need to inform the other parent of the decision, but did not need to consult or take the other parent´s views into account.

3. Decisions that you would need to both inform and consult the other parent prior to making the decision.

The above is simply guidance from that judgment, and you should also be aware that while the resident parent (or the person named in a child arrangements order as the person with whom the child lives) may take the children abroad on holiday for up to one month without the consent of any other holder of parental responsibility, other holders of parental responsibility should seek the consent of all other holders of parental responsibility before taking the children abroad. If this is unreasonably withheld, the court can grant permission following an application for a specific issue order.

The court can also limit the ability of parents to take certain decisions following an application for a prohibited steps order.

Will professionals respect my having parental responsibility?

They should, but some professionals are ignorant of parents´ rights and their own duty to uphold those rights. This can be a particular problem for parents with historic contact orders, or parents not named in a child arrangements order as having the child live with them. Even when parents shared residence, and/or are both parents are named in a child arrangements order as having the children live with them, the parent with more care time may be shown preference in decision making.

Information is included in the following sections of our app to support you, and help you remind professionals of their duties under the law:

Do I have Parental Responsibility for my biological child?

A mother automatically has Parental Responsibility for her child. Note, where conception is via fertilisation treatment and via a donor egg, the woman who gives birth to the child is legally considered as the child´s mother.

A biological father may or may not have Parental Responsibility for their child, depending on whether:

Where a surrogate mother is involved, a parental order (different from a parental responsibility order) is required to transfer legal parenthood and parental responsibility to the people named in the order (who then become the child´s legal parents). It is important to be aware that under the Human Fertilisation and Embyology Act 2008, the surrogate mother is considered to be the child´s legal parent (as is her partner, if married) until a parental order is made. If the surrogate mother is unmarried, the biological father will normally be considered as the child´s legal parent (until a parental order changes this, in the event that the biological father is not to be the new parent).

Acquisition of parental responsibility by the non-biological lesbian parent

The non-biological lesbian parent may gain parental responsibility in one of the following ways:

  1. Being in a civil partnership with the biological mother at the time of conception where conception is via donor insemination or specialist fertility treatment (note: conception via normal intercourse rather than artificial insemination is excluded). The non-birth mother must consent to the conception.
  2. Where not in a civil partnership, the non-birth mother may acquire parental responsibility where conception is via a UK fertility clinic licensed by the Human Fertilisation and Embryology Authority and both partners sign a consent form before the date of conception (the form is provided by the fertility clinic). These forms must be signed before conception!
  3. Having a joint residence order made in her favour (superceded by child arrangements orders in April 2014) - joint residence is a phrase used where partners are not separated.
  4. Being granted an order for parental responsibility by the court.
  5. By having a child arrangements order naming her as someone with whom the child lives.
  6. By having a child arrangements order naming her as someone with whom the child spends time, where the court has specified within the order that parental responsibility is granted to her.
  7. Where the birth mother has entered into a Parental Responsibility Agreement with her lesbian civil partner (all other holders of parental responsibility for the child must consent).

A child only has two legal parents albeit this is not the same as legal parental responsibility. The former includes rights to inheritance and duties in relation to child support, while parental responsibility governs decisions about the child´s life such as schooling, religion and medical treatment.

Irrespective of the mother´s relationship, it is important to be aware that the biological father may be considered the second legal parent if:

Can other adults gain PR for a child?

Yes, and in a number of different ways:

How do biological fathers enter into a Parental Responsibility Agreement?

How do step-parents enter into a Parental Responsibility Agreement?

What if my child´s mother won´t sign?

If the mother refuses to sign a Parental Responsibility Agreement, you can apply to the Court asking them to grant you parental responsibility by making a Parental Responsibility Order in your favour. The form to use is the C1.

What the court considers

The following points are likely to be considered by the Court when assessing your application for a Parental Responsibility Order:

  1. whether your name appears on the birth certificate.
  2. how active you have been in maintaining contact with your children and meeting your commitments to them.
  3. your previous involvement in your children´s education.
  4. what financial support you provide for your children.
  5. the reasons for your application.
  6. the strength of the relationship between you and your children and the degree of commitment you´ve previously shown to your children.
  7. The Court will also consider the principles set down in the Welfare Checklist.

Michael Robinson © 2014

Family law information for parents whose children are resident in England and Wales

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen's printer for Scotland.