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Who has parental responsibility for a child?

Parental responsibility gives a parent the right to make key decisions about a child’s upbringing, while also giving them a duty to provide for the child’s welfare and making them legally responsible for the child.

In most cases, a child’s birth mother will automatically have parental responsibility, while the child’s biological father, or a partner the birth mother is married to or in a civil partnership with, will also likely have parental responsibility.

However, there are various issues, such as adoption, re-marriage, surrogacy and sperm donation that can complicate matters. This means it may not always be immediately clear who has parental responsibility and you may need to take action to establish this and/or to get parental responsibility.

How to know who has parental responsibility for a child

A child’s birth mother will always have parental responsibility, unless she has given the child up for adoption or the child has been taken into care.

A child’s biological father will have parental responsibility if he was married to the mother when the child was born. If he was not married to the birth mother, the father will still have parental responsibility if he was listed on the birth certificate (although this only applies if the child was born after 1st December 2003 in England and Wales, 4th May 2006 in Scotland and 15th April 2002 in Northern Ireland).

A man who is not the child’s biological father but was married to the birth mother at the time the child was born will also normally have parental responsibility.

When you adopt a child, parental responsibility will be removed from anyone who previously had it, such as the child’s birth mother. You will then have sole parental responsibility, unless otherwise agreed.

Female same-sex partners will both have parental responsibility if they were married or in a civil partnership at the time the baby was conceived, as long as this was done through a clinic licensed by the Human Fertilisation and Embryology Authority (HFEA). If the baby was conceived outside of a licensed clinic, the sperm donor could make a claim for parental responsibility (although they will not automatically have it).

Male same-sex partners having a baby via a surrogate will need to apply to a court for a parental order for the child to become its legal parents and have parental responsibility. Until this occurs, the child’s birth mother will have legal responsibility and is under no obligation to give up the child if she changes her mind about doing so.

How to get parental responsibility

There are two main ways to gain parental responsibility for a child – either by agreement with those who already have parental responsibility or by going to court. More than two people can have parental responsibility, so, for example, a biological father wouldn’t need to give up their rights in order to ‘make room’ for a stepfather.

If everyone who currently has parental responsibility agrees to share this with you, you can arrange this with a parental responsibility agreement. You will need to take this to your local county court or family court to have the agreement signed and witnessed.

If someone with parental responsibility objects to you also having parental responsibility, you may need to go to court and apply for a parental order to establish your rights as a parent.

In most cases, it will be better for a child’s welfare if you can agree on issues around parental responsibility without the need to go to court e.g. through negotiation or mediation. Taking a collaborative approach to these issues usually makes it easier for those with an interest in a child’s welfare to maintain a positive relationship, as well as usually being the fastest and least expensive way to resolve such issues.

Crisp & Co’s expert child law solicitors can help you with all issues related to parental responsibility, including establishing who has parental responsibility for a child and arranging parental responsibility where this is not currently in place.

To find out more, call us today on 020 3797 4952 or get in touch using the enquiry form below.

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