Section 3(1) of the Children Act 1989 defines parental responsibility as “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”.
Some of the key decisions which can be made by those with parental responsibility include:
- choosing or changing the child’s name;
- consenting to medical treatment;
- choosing where the child goes to school; and
- consenting to taking the child abroad for holidays.
Trainee solicitor Miriam Spencer explains parental responsibility in more detail, with a focus on the legal routes to terminating parental responsibility.
Who has parental responsibility automatically?
When a mother and father are married at the time of the child’s birth, they will both automatically get parental responsibility for the child. Second female parents will also automatically have parental responsibility, if they were married to or in a civil partnership with the mother at the time of birth.
How to obtain parental responsibility
An unmarried father or second female parent can acquire parental responsibility in three ways:
- by registration on the child’s birth certificate;
- by entering into a “parental responsibility agreement” with the mother; or
- by order of the court.
When might parental responsibility be terminated?
There is no provision for discharging the parental responsibility of a mother, a married father or a married second female partner (the same applies to those in civil partnerships).
Section 4(2A) of the Children Act provides that a person who has acquired parental responsibility shall cease to have that responsibility only if the court so orders.
Cases in which parental responsibility has been successfully terminated
The first reported judgment in which a mother made a successful application to terminate the father’s parental responsibility was Re P (Terminating Parental Responsibility) [1994]. As with all applications made pursuant to the Children Act 1989, the court emphasised that the welfare of the child is the court’s paramount consideration. The court felt that the desire for parental responsibility is laudable and should be encouraged, and on that basis, the presumption should be for continuance rather than termination with a rescission as the very last resort. The key test laid down by the court, and applied in later cases, is whether the court would grant parental responsibility based on the facts now, if such responsibility did not already exist.
The removal of parental responsibility is a draconian measure, and not one the court will grant lightly. The following cases demonstrate that parental responsibility will only be removed in extreme circumstances.
The child (D) was the only biological son of both the mother and the father. The mother had two daughters from a previous relationship. D’s father pleaded guilty to sexually abusing D’s step-sisters (although he later claimed this was a false confession). During his time in prison, the father wrote to say he wanted contact with D. Upon his release from prison, the mother made an application to terminate his parental responsibility.
The court held it was inconceivable that if the father made an application for parental responsibility at that time, it would be granted. Owing to the impact of D’s abuse of the step-sisters on the family, the father could not foreseeably exercise parental responsibility in a way which was beneficial for D. The court therefore terminated parental responsibility.
The father was accused and convicted of seriously sexually abusing his child (A) and was sentenced to 14 years in prison. The mother made an application seeking termination of the father’s parental responsibility for both of their children. The mother also applied for an order seeking a change of the children’s surnames.
The court found that the application was entirely appropriate and child focused. The magnetic factors were the significant harm A had suffered at the hands of her father, the children’s emotional needs and the risk of future harm to both children if the father exercised parental responsibility to be involved in their lives.
The mother applied for a child arrangements order for no contact between the child and father, a specific issue order to change the child’s surname, and an order terminating the father’s parental responsibility.
The father had engaged in a course of harassment against the mother after their separation. The mother also alleged domestic violence and coercive and controlling behaviour during their relationship. Separately, the father was accused and convicted of grooming and threatening a 14 year old girl amongst other offences.
The court found that the father posed a significant risk to adolescent children and that if he continued to have parental responsibility, the father would likely use it to control and harass the mother. The court was satisfied that terminating the father’s parental responsibility was manifestly in the child’s best interests.
Alternatives to terminating parental responsibility
Where the court finds itself unable to terminate parental responsibility, the court retains the ability to prevent a father from exercising his parental responsibility, whether in part or completely.
In F v M [2023] EWFC 5, the father of two children applied for contact with them under the Children Act. The mother made an application to remove F’s parental responsibility in the event that no order for contact was granted. As the parents were married at the time of the children’s births, the court was unable to terminate the father’s parental responsibility. However, the court recognised that this case involved extreme coercive control and required judicial intervention.
The court made a prohibited steps order preventing the father from taking steps of any kind to meet his responsibility for the children. In granting the order, the judge stated: “There is, sometimes, though very rarely, a parent who has nothing to offer a child and whom the child is better off without. This is such a case.”
Comment
Rosie Stewart, a Senior Associate specialising in children law in the Divorce and Family team at Stewarts comments: “Successful applications for the termination of parental responsibility are rare and will involve conduct which is so serious as to pose a significant risk to the welfare of the child, almost always accompanied by a criminal indictment.
Whilst it will not be possible to prevent a parent from having parental responsibility in most cases, the result of F v M demonstrates that the court can still put in place the necessary orders to prevent the exercise of those responsibilities, if the parent doing so would put a child at the risk of future harm. In all cases, the welfare of the children will be the court’s paramount consideration.”
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