⇒ Parental responsibility is defined in section 3 of the Children's Act 1989 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”

⇒ Family Justic Review Final Report 2011 supports the idea that wherever possible there should be shared parental responsibility, especially where parents are separating

⇒ The gestational mother automatically has parental responsibility

⇒ Fathers have parental responsibility if:

• They are married to the mother at time of birth; they enter a parental responsibility agreement with the mother; they have a parental responsibility order from the court; they have been been given a Child Arrangement Order; or they are registered on the birth certificate;
• Civil partners, step fathers, and second female parents can apply to the court for parental responsibility (s4A + s4Z Children's Act 1989)

⇒ The Human Fertilisation and Embryology Act 2008 amended section 2 of the Children's Act 1989, bringing section 2A:

• “Where a child has a parent by virtue of section 43 and is not a person to whom section 1(3) of the FLRA 1987 applies:
• (a) the mother shall have parental responsibility for the child
• (b) the other parent shall have parental responsibility if she has acquired it (e.g. a parental responsibility order or parental responsibility agreement)

⇒ A parental responsibility agreement (s.4(1)(b) CA 1989) with the mother - this is easy to do, but happens rarely

⇒ Being registered as father (or 2nd female parent) on birth certificate (s4(1)(a) CA ’89)

• Welfare Reform Act 2009 section 56 makes joint registration mandatory except if it is “impossible, impracticable or unreasonable”

⇒ Child Arrangement Orders (CAOs) were brought in with this act - parental responsibility is attached with CAOs relating to residence (BUT not to CAOs relating to contact, unless it would be appropriate to do so)

⇒ Step parents can apply for parental responsibilithy under section 4A CA (brought in by Adoption and Childrens Act 2002)

⇒ The 2nd female parent can also apply for parental responsibility under s4Z (brought in by Adoption and Childrens Act 2002)

⇒ If the father does not get parental responsibilityu through section 4(1)(a) ( birth registration) or section 4(1)(b) (parental responsibility Agreement) he will have to go through court to get a Parental Responsibility Order (section 4(1)(c))

⇒ Re H [1991]: the father’s commitment and attachment to the child, plus any other reasons father as to why the father is applying for parental responsibility

⇒ Re J [1999]: previous contact with the child may be relevant. In this case, the father was effectively a stranger to the child so parental responsibility was refused by the court

⇒ Re S [1995]: the court recognised that if the man is the biological father and committed to the child he should have parental responsibility, even in this case where the father had prior convictions for possessing obscene literature

⇒ Undertakings (i.e. promises not to do something) can be used to give flexibility. E.g. In Re D [2006]: an undertaking was made by the biological father (who had donated his sperm to a lesbian couple) not to visit the child without prior written consent from the lesbians, even though he had parental responsibility

⇒ Re R [2011]: parental responsibility was refused when a man later found out he was not the biological father

⇒ R v E and F [2010]: parental responsibility was given to a lesbian couplem but it was refused for the biological father

⇒ Re T and B [2010]: a same sex couple had parental responsibility of a child after separation. The legal mother applied for Financial Provision against her ex-partner (s.15 Children's Act). It was held that parental responsibility does not make one a legal parent so the other parent didn't have to give financial help

⇒ When there is a possibility of misuse

• Re P [1992]: the court rejected parental responsibility to father as it was felt it would be against the child’s welfare
• Re T (PR) [1993]: the father had been sadistic to the son so was rejected parental responsibility

⇒ Section 2(7) of the Children's Act 1989 allows those with parental responsibility to act alone in exercising their parental responsibility, unless statute requires the consent of both

• In practice this does not always happen e.g. Re G (PR: Education) [1995]

⇒ Who may get parental responsibility if they are not a parent?

• Those with a residence order (now a Child Arrangement Order) in their favour; guardians (s5(6) CA); special guardians (s14 CA); or the local authority

⇒ Mothers and married fathers can lsoe parental responsibility in the following circumstances: s.30 HFEA 1990 (surrogacy) OR an adoption order is made

⇒ Unmarried fathers, the local authority, or a guardian can lose parental responsibility when:

• An adoption order is made
• s.30 HFEA 1990 (surrogacy)
• section 91 Children's Act applies (i.e. child reaches 18 years old)
• The court terminates it (s.4(2A) + s.3 CA) (see Re P [1995])
• The child dies
• The end of residence (under a Child Arrangement Order)

⇒ Parental responsibility can be taken away even if the parent is on the birth certificate (see CW v SG [2013])

⇒ Defined in section 105(1) of the Children's Act 1989

⇒ This relates to where the woman has married someone else (step father) and what happens when they separate

• The reference to a ‘child of the family’ means, to a certain extent, they will have financial responsibility for the child etc.

⇒ J v J [1993]: despite the child living with mother and step-father for 10 years, the man was not seen to be the child’s father because they were not married

⇒ D v D [1981]: the Court of Appeal held that the test is that the independent outside observer would think the child was treated as a member of the family