Parental Responsibility

Emily Landale takes a back to basics look at Parental Responsibility (“PR”) with an emphasis on how it is won and lost.

Emily Landale

There is a general presumption that, once made, a parental responsibility order should be continued. This is certainly the case where it is made for a child’s absent father as a means of encouraging and supporting the child-father relationship. Case law for the termination of a father’s parental responsibility exists but the termination of a step-parent’s parental responsibility order seems more complex.

Recently, a child was to be removed from the step-parent’s care and placed in long term foster care. The step-parent had a parental responsibility order for the child and the child’s birth mother sought to terminate that order.

This case was somewhat unusual in that the birth mother lacked capacity and had lacked capacity at the time the step-parent’s order was made. The mother had no litigation friend for those proceedings, meaning that the current judge could and did declare the order null and void.

Had this not been the case, successfully terminating a parental responsibility order would require a high threshold to be met.

What is parental responsibility?

Parental responsibility is defined in section 3 of the Children Act 1989. It is “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”.

Therefore, parental responsibility means having responsibility for all of the important decisions in the child’s life – such as their education, religion and what medical treatment they may or may not receive.

Who has parental responsibility?

When a child is born, the mother automatically acquires parental responsibility. If the father is married to the mother, he will automatically gain parental responsibility when the child is born.

An unmarried father can acquire parental responsibility by being put on the child’s birth certificate; by entering into a parental responsibility agreement with the mother; by applying to the court for a parental responsibility order; by marrying the mother (as long as the child is under 18 years old); by acquiring a residence order from the court; or by being appointed as the child’s guardian by the mother or by the court, but this would only have affect upon the death of the mother.

Same Sex Couples and Parental Responsibility

The following applies to children born on or after 1 September 2009.

The birth mother’s wife or civil partner has parental responsibility and is treated as the child’s second legal parent if the couple were married or in a civil partnership at the time the child was conceived and the birth mother’s wife/civil partner consented to the insemination. There is a presumption in favour of that consent, unless otherwise demonstrated. She will automatically gain parental responsibility and can be put on the birth certificate. Where the couple are married or in a civil partnership, it does not matter whether the child was conceived through fertility treatment at a clinic licensed by the Human Fertilisation and Embryology Authority or through a private arrangement.

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If the couple are not married nor in a civil partnership, the second parent can gain parental responsibility if two conditions are met. The child must be conceived through fertility treatment at a licensed clinic in the UK, and the couple must both sign election forms before the date of conception. The non-birth mother will then be able to be named on the birth certificate and will hold parental responsibility for the child.

If the couple are not married nor in a civil partnership, and the conception was not through a licensed clinic in the UK, the non-birth mother does not automatically gain parental responsibility and would need to apply for an order in order to acquire it.

How can parental responsibility be removed?

The child’s welfare is the paramount consideration. Parental responsibility is only terminated where it is necessary in order to protect the child from serious emotional or physical harm. Terminating parental responsibility should only be used “where the circumstances really do warrant it and not otherwise”.

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In Re P [1995] Singer J approached the application by considering whether the individual would be granted a parental responsibility order if they were to apply now. In light of what was now known, would the individual be granted an order? If they would not, then that was a factor in favour of terminating the existing order. This approach was upheld in Re S [1995].

In CW v SG [2013]the father’s parental responsibility was terminated following his imprisonment for sexual assault. The order was terminated to prevent the child from further emotional harm that could have been caused by association with a father who was convicted of sexual assault.

In A v D [2013]the father’s parental responsibility was terminated following his imprisonment for serious domestic violence. The high threshold for removal of the order was met in this case because it was necessary in order to protect the children from the father who posed a serious emotional and physical risk to them.

In Re B and C [2017] termination of parental responsibility was held to be an extreme remedy, but one which was necessary and proportionate to ‘achieve the objective of ensuring the mother and children’s safety and emotional and physical well-being. The father had brought about that exceptional situation by his own misconduct’. Leaving the father-child relationship open in this case would have been contrary to the children’s emotional interests. The children’s ECHR Article 8 rights took precedence over those of the father.

It is clear that cases where parental responsibility is terminated, an exceptional set of circumstances must exist. Where the child is likely to be harmed by the continuance of the parental responsibility order, it is a necessary step in the regulation of their life to terminate the order.

How might a step-parent’s parental responsibility be removed?

Preventing the local authority from being under unnecessary pressure

In Re P [1995], the court also considered that in allowing the father’s parental responsibility to continue, they would require the local authority to “perpetually … have to go through the rather arid procedure of considering under s.33 how to exercise its power to determine the extent to which the father may meet his parental responsibility”.  Therefore, in the case of step-parents holding parental responsibility in addition to the birth parents and the local authority, the continuance of the step-parents’ parental responsibility could place the local authority under unnecessary pressure, and create an unnecessary additional workload.

Step-parent’s parental responsibility adding little to the child’s sense of identity

Where the step-parent holds only a small percentage of the parental responsibility by virtue of the sheer number of people who hold responsibility for the child, meeting the high threshold for termination of that order seems redundant.

It is a pragmatic and practical step in the regulation of a child’s life to reduce the number of people the child is required to form a bond with – especially where that relationship could potentially be harmful to the child. Where multiple people have parental responsibility for the child, the individual relationships do little to further the child’s sense of their own identity, and the quality of the relationship they form could be diluted.

Terminating a step-parent’s parental responsibility would reduce confusion, and allow the child to form stronger relationships that will inform them of their own identity and help them understand who they are. Whilst each case is completely different, a step-parent is less likely to be able to support that self discovery than a birth parent.

Despite the lack of precedent for the termination of step-parental responsibility orders, it seems that the threshold required for termination would not be as high as that required in the case of terminating a father’s parental responsibility.

Emily Landale is a first-six pupil at Central Chambers. Her pupil supervisor is Kirstin Beswick. Her pupillage is a mix of criminal and family practice. Subscribe to our newsletter to know when Emily commences her “second-six” and is able to accept instructions from solicitors.

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