Parental Responsibility and Court Applications regarding children

What is Parental Responsibility (PR)?

PR is the legal name given to the bundle of rights, obligation and responsibilities a parent has in relation to their child.

How do I know if I have PR?

A child’s birth mother will always have PR for her child. A father will also obtain PR automatically if he is married or in a civil partnership with the mother when the child is born. An unmarried father can obtain automatic PR by being registered as the child’s father on the birth certificate (assuming the child was born after 2003).

If the child was conceived by artificial insemination on or after 6 April 2009 and you were in a civil partnership your civil partner will automatically have parental responsibility for the child. Similarly, if you were married to your same-sex spouse and the child was conceived by artificial insemination your spouse will automatically have parental responsibility for the child. Although both names should be added to the birth certificate.

How do I get PR if I don’t have it?

PR can be obtained in the following ways:

• by subsequently marrying or entering into a civil partnership with the mother;
• by entering into a PR agreement with the mother and filing it at the Central Family Court;
• by obtaining a court order granting PR;
• by being named in a child arrangements order (CAO) as a person with whom the child is to live;
• by becoming the child’s guardian or adopting the child.

What can I do with PR?

When both parents have Parental Responsibility they are able to act jointly or independently of each other. This means some decisions can be made without the agreement or consent of the other parent.

Day to day or more minor decisions (such as what breakfast the child should have) can and should be taken by one parent without the need to consult the other parent.

When do I need consent to take actions?

The view of the court is that one parent’s PR does not ‘trump’ the other parent. Both parents are treated equally.

The court expects there to be agreement on the bigger decisions including:

• determining the child’s education and where the child goes to school;
• choosing, registering or changing the child’s name; and
• consenting to an operation or (non emergency) medical treatment.

In addition to the above, each of you need the consent of the other parent to take the child out of the jurisdiction of England and Wales, whether this would be for a holiday or permanent move (subject to one exception which is referenced below). If one of you were to remove a child from England and Wales without the permission of the other parent, this would be child abduction which is a criminal offence.

What can I do if we don’t agree?

If you cannot agree and have explored mediation or other methods to help you reach an agreement, either parent can apply to the court for the court to made a determination. The court has the power to decide how people can exercise their Parental Responsibility or to limit how they exercise it. The focus of the court will be what they consider to be in the best interests of the child.

What orders can the court make?

The court can make the following orders:

1. Child Arrangements Order
2. Prohibited Steps Order; and / or
3. Specific Issue Order.

Child Arrangements Order

The court can make decisions about who the child lives with, who the child spends time with and the specific arrangements for when they live and spend time with each parent. It is possible for the court to determine that a child ‘lives with’ both of their parents.

There is one advantage of being a parent that a child ‘lives with’ rather than ‘spends time with’ as it enables that parent to take the child out of the jurisdiction for up to one month without needing the consent of the other parent. For the avoidance of doubt, if taking the child out of the jurisdiction would encroach on the time they are to spend with the other parent then you need their consent to alter the arrangements where these are set out in a court order. This is the exception to the rules regarding leaving the jurisdiction and child abduction offences. An order phrased as a ‘spends time with’ order does not give the parent with that order that ability to travel with the child and consent is needed for each time you leave the jurisdiction.

Prohibited Steps Order

If you wish to prevent a parent exercising their PR in a particular way, an application would need to be made for a Prohibited Steps Order. Two of the more common situations include where there is a discovery that the other parent intends to change the child’s school without agreement or where you suspect there may be some form of abuse taking place and you wish to stop the other parent from spending time with the child.

Specific Issue Order

Finally a Specific Issue Order is used to determine a particular issue between parents. Three of the most common scenarios include deciding on schooling arrangements, where one parent wants to go on holiday with a child and the other parent doesn’t agree or regarding consent to medical treatment such as vaccinations.

It is quite common for a Specific Issue Order application to be made in conjunction with either a an application for a Prohibited Steps Order or to determine a Child’s Arrangements.

What factors does the court take into account when making decisions?

When considering applications for any of these orders the focus of the court is the best interests of the child. The child’s welfare shall be the court’s paramount consideration and when considering this they will consider a number of principles such as the notion that delay is prejudicial to a child’s best interests and also that the court should only make orders where it is necessary to do so. Additionally, the court works from the presumption that it is better for a child to have a meaningful relationship with both of their parents, provided it is safe or can be made safe for them to do so.

In addition to these principles and presumptions, the court will consider a number of factors which are known as the ‘Welfare Checklist’. These are set out in brief below:-

• the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
• the child’s physical, emotional and educational needs;
• the likely effect of any change in the child’s circumstances;
• the child’s age, sex, background and any characteristics which the court considers relevant;
• any harm which the child has suffered or is at risk of suffering;
• how capable each of the child’s parents are, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs; and
• the range of powers available to the court under this Act in the proceedings in question.

How each of these factors would be relevant would depend on your specific circumstances. Our specialist team can assist you in gauging the likely success of any of these applications should the need arise. For further advice about your particular circumstance please do contact us.