In the recent case of A v D [2013] EWHC 2963 (Fam) a father’s parental responsibility was terminated as he posed a serious physical and emotional risk to the child and mother. Before looking at this case, it is important to summarise the meaning of parental responsibility, who has it and how it can be acquired.

What is parental responsibility?

Under section 3 of the Children Act 1989 parental responsibility is defined 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.”

It concerns the responsibility of raising a child and taking key decisions relating to their upbringing. It lasts until the child reaches 18 or marries between 16 and 18 years.

Whilst there is no list of rights laid down in the Act, in reality it gives parents the responsibility to make important and sometimes life-changing decisions, such as the name by which the child shall be known, what medical treatment the child should or should not receive, what religion the child should practice, where the child should go to school, where the child should live, whether the child should move abroad and the arrangements for dealing with the child’s property and finances.

Who has parental responsibility?

When parents are married to one another at the time of their child’s birth, both the mother and father will automatically each have parental responsibility. If parents are unmarried when their child is born then only the mother has automatic parental responsibility. The father in this situation does not have it, although he can later acquire it.

How can parental responsibility be acquired?

A child’s unmarried father can acquire parental responsibility after the child has been born in any one of six ways:

  1. By entering into a parental responsibility agreement with the mother – this must be on a prescribed form called Form C(PRA1), it must be signed and witnessed by a court officer (not a solicitor), and it must be filed at the Principal Registry of the Family Division (London’s main family court). A separate form is required for each child. The agreement ends automatically when the child reaches 18 or if the child is adopted. The agreement can also be brought to an end by a court order.
  2. By applying to the court for a parental responsibility order when the mother will not enter into a parental responsibility agreement – the child must be under 18 and there are a number of considerations the court must take into account when deciding whether to grant such an order. However, it is generally awarded to committed fathers unless doing so would put the child’s welfare at risk. The order will automatically end when the child reaches 18 or if the child is adopted. The order can also be terminated by subsequent court order.
  3. By marrying the mother provided the child is under 18 – parental responsibility will not be lost if the parents later divorce.
  4. By registering his name on the child’s birth certificate – for children born on or after 1 December 2003 where their parents were not and have not married, the father will acquire parental responsibility if he is named as the father on the child’s birth certificate. However, unmarried fathers of children born before 1 December 2003 will not have parental responsibility this way and they will need to acquire it by one of the five remaining ways detailed here.
  5. By obtaining a residence order from the court – this can be a sole residence order made in favour of the father, a shared residence order or a joint residence order.
  6. By being formally appointed as the child’s guardian by the mother or by the court – however, the parental responsibility will only take effect upon the mother’s death.

Parental responsibility also applies in same-sex couples. However, it is a more complicated situation which depends on how the child was conceived and in what circumstances.

Parental responsibility can also be acquired by people other than the child’s parents including:

  • Step-parents (for further details see “Step Parents – Family Member or Legal Stranger” blog by Camilla Fusco on 13 September 2013)
  • Guardians• Those appointed as special guardians
  • Local authorities
  • Those in whose favour a residence order is made
  • Those granted an emergency protection order

Can parental responsibility be terminated?

In short the answer is “yes” – it is possible to apply to the court for an order to terminate parental responsibility. However, there have only been a very small number of cases dealing with this issue since the Children Act 1989 was passed involving:

  • Termination of a parental responsibility agreement concerning an unmarried father who was sentenced to a term of imprisonment for being found guilty of inflicting grievous bodily harm to the child – Re P (Terminating parental responsibility) [1995] 3 FCR 753).
  • Termination of an unmarried father’s parental responsibility acquired by registration on the child’s birth certificate in a case where the father pleaded guilty to various offences of sexual assault on the child’s siblings, for which he was sent to prison – CW v SG [2013] All ER (D) 117 (Apr).
  • Revocation of a father’s parental responsibility in circumstances where he was convicted and imprisoned for a serious case of domestic violence. He had stabbed, punched and kicked the mother of two half-siblings (some of which was witnessed by children). He had also burgled the family home after the mother and children had fled to safety and set fire to the police car sat outside the property for their protection. The mother successfully obtained a residence order in respect of the 4 year old child, permission to change the child’s forenames and family name, and an order revoking the father’s parental responsibility. The high threshold to terminate parental responsibility was met in this case and the orders were necessary to protect the mother and children from the father who posed a serious risk, especially after his release from prison – A v D [2013] EWHC 2963 (Fam).

As these cases show, the child’s welfare will be the court’s paramount consideration when dealing with the issue of termination of parental responsibility and it would seem termination will only be ordered when it is necessary to protect the child and family from serious emotional and physical harm.