Michelle Buckle, Stuart Barton (Head of Department), Samantha Cole, Paula Fraser
The Children Act 1989 introduced the concept of Parental Responsibility (PR). This is defined in the Act as: “all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his property.” What exactly does this mean?
In practical terms, a parent with PR has the right to have a say, and be consulted upon, important issues regarding the welfare of their child.
A parent with PR has the right to have a say upon issues such as religious orientation or the choice of school for their child. They can have a say upon medical treatment or a proposed change of name. They can apply for a passport for their child. It follows that while the legal definition of PR is somewhat vague, its practical implications are important.
Who has PR?
All mothers have PR for their children. For fathers, the position is rather different. If the father is married to the mother at the time of the child’s birth, he will have PR. If the father is not married to the mother at the time of the child’s birth, he will obtain PR if he and the mother later marry.
For unmarried fathers, obtaining PR can be more difficult. From 1 December 2003 onwards, an unmarried father would obtain PR for their child if they were present at the registration of the birth and were registered as the child’s father. This long overdue change has gone someway towards helping unmarried fathers obtain PR for their children.
However, the fact remains that there are many fathers of older children (born before December 2003) who do not have PR, even if they are registered as the child’s father. We also encounter fathers whose relationship with the child’s mother has broken down prior to the birth of the child. If the relationship between the parents is difficult, the mother may often decide to register the birth of the child on her own.
The unmarried father who does not have PR can acquire it in the following ways:
– If he obtains a residence order for the child he automatically obtains PR;
– He and the mother can enter into a PR Agreement;
– He can make an application to the court for PR.
If a father has to make a court application, he will usually have to convince the court of his commitment to the child, that there is an attachment between him and the child, and that his application is made genuinely. In other words, the father must show that he is not applying for PR simply so he can interfere in the mother’s upbringing of the child.
For the overwhelming majority of fathers, applications for PR are successful. However, it remains common that mothers often choose to view such applications with suspicion. Fear that the father is trying to undermine their role and responsibilities towards the child can often play a part here. In general though, the court would have to find strong reasons to refuse a PR application by an unmarried father.
If a father obtains PR by being married to the mother (or marrying her later), the mother is unable to make an application that ends the father’s PR. It also follows that as all mothers have PR for their child, a father cannot make an application that ends the mother’s PR. However, a mother can apply to end an unmarried father’s PR, if he obtained it via registering the birth, a PR agreement or a court order.
Until very recently, there had only been one reported case where a mother had applied to end an unmarried father’s PR. This was Re P, a case dating back to 1995. In this case, the father was imprisoned after inflicting serious injuries to the child (aged only 9 weeks at the time). The court agreed that the father’s actions justified the termination of his PR for the child. However, it was emphasised that PR should only be terminated in extreme cases.
A far more recent case is that of CW v SG , heard by the High Court in April 2013. In this case, the father was imprisoned for a series of sexual offences committed against the mother’s children from a previous relationship. The father had PR for D, the parties’ only son. Whilst in prison, the father made efforts to seek contact with D and these efforts were rejected by the mother. When the father was released from prison, the mother made an application to terminate the father’s PR for D.
As in Re P, the court concluded that it was appropriate to terminate the father’s PR for D. The court took the view that if the father had not had PR for D in the first place, it was inconceivable that it would now be granted to him. D’s emotional welfare would be at significant risk if the father were to retain PR for him in the future. The father is currently appealing against the court’s decision in this case.
If you are in doubt over whether you have PR for your child or children, or are thinking about obtaining a PR agreement, why not give us a call?