The Children Act 1989 came into effect in 1991 and drastically reformed the law surrounding children. This Act established parental responsibility as a concept in order to focus on a parent’s responsibility towards a child rather than their rights over the child. Parental responsibility is defined under Section 3(1) of the Act 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’.
If a child’s parents are married, they have joint parental responsibility for their child. However, if a child’s parents are unmarried, the mother has sole parental responsibility. If a child’s parents marry later in life, both parents will have parental responsibility for the child. There are a number of options available to unmarried fathers acquiring parental responsibility for their child. The simplest and most common method is for fathers to be registered on the child’s birth certificate as the father. This will be done with the mother’s consent, which on occasion can be difficult to obtain.
If a mother is refusing to include the father’s name on the child’s birth certificate, the father would then need to apply to the Family Court for a Parental Responsibility Order under Section 4(1)(c) of the Children Act 1989. When deciding whether a father should be granted parental responsibility, the court considers factors such as the fathers’ commitment to and relationship with the child and his reasoning for the application. The court looks to see whether a father has a genuine concern for the child and that his desire to acquire parental responsibility is a genuine desire to have responsibility for the child. The court may also decide to make a Parental Responsibility Order when considering a Child Arrangement Order. If a court has made a Child Arrangement Order stating the child is to reside with the father, the court should subsequently make a Parental Responsibility Order.
Applying to court is usually a last resort, more often than not, unmarried parents will enter into a Parental Responsibility Agreement to avoid attending Court. However, Parental Responsibility Agreements have become increasingly less common because if a mother agrees to the Agreement, she is likely to agree to register the father on the birth certificate. In any case, the Agreement will put the father in the same position he would be had he obtained a Parental Responsibility Order from the court. This Agreement should be written in a prescribed form and witnessed by a Justice of the Peace, their clerk, or a court official who is authorised to administer oaths. The Agreement and two copies must be sent to the Central Family Court, where they will be sealed and a copy will be returned to each parent. Parental Responsibility Agreements cannot be concluded between parents, a court order is required to end the Agreement.
If a mother appoints the father as a guardian of the child in her Will, the father will acquire parental responsibility on the death of the mother. If the father is not appointed as the guardian of the child on the mother’s passing, the father can apply to court to be appointed the child’s guardian. If the mother appointed someone else to be the child’s guardian, the father must apply for a Parental Responsibility Order or a Child Arrangement Order.
Please contact John Szepietowski or Kay Stewart admin@audleychaucer.com at Audley Chaucer for details on this matter or any other legal topic www.audleychaucer.com.
