Q: Hi. We are taking out a residence order in respect of our granddaughter. We [...]
Parental responsibility & Kinship careCreated by Lynn in Age: At School, Age: Baby & Toddler, Age: Pre-school, Kinship Carers, No contact
As the name suggests parental responsibility is not about the rights of parents regarding their children, but legal responsibilities to their child and who holds such responsibility.
It is probably useful to look at what this means in respect of caring for a child. While legislation does not define in detail what this means, there are key responsibilities in respect of this. In this it is about meeting the basic needs for a child, which includes*:
- providing a home for the child
- having contact with and living with the child
- protecting and maintaining the child
- disciplining the child
- choosing and providing for the child’s education
- determining the religion of the child
- agreeing to the child’s medical treatment
- naming the child and agreeing to any change of the child’s name
- accompanying the child outside the UK and agreeing to the child’s emigration, should the issue arise
- being responsible for the child’s property
- appointing a guardian for the child, if necessary
- allowing confidential information about the child to be disclosed
*taken from the Directgov website.
A birth mother, by the very fact of being the birth mother, automatically holds this legal responsibility. This cannot be taken away from her, with the exception being upon the making of an adoption order, which then completely transfer all legal responsibility from her to the adoptive parent(s).
There is of course a huge expanse of ground in respect of who has parental responsibility and what this means in the terms of caring and making decisions for a child.
If following through with the above regarding adoption, parental responsibility is acquired when a child goes to live with their prospective adoptive parents. This happens because a placement order has been made on a child. This follows often a lengthy court hearing where a care order is granted and the care plan is adoption. With a care order parental responsibility is shared between the birth mother (and father is he holds parental responsibility), the local authority, and, if a placement order has been made and a child is placed in their prospective adoptive home, the prospective adopters. In reality this means that the local authority holds the ultimate decision-making concerning the child’s care, however, the day-to-day care of the child can be carried out by the prospective adoptive parents without the need to continually seek permission from the local authority. The birth parent(s) still have parental responsibility but in reality they do not have much say in the day-to-day care of their child. In the past prospective adoptive parents did not hold parental responsibility until they were granted an adoption order.
The changes in these legal responsibilities are because of the Adoption and Children Act 2002.
Once an Adoption Order has been made all previous orders, such as Care and Placement Orders expire. Adoptive parents have sole parental responsibility. Birth parents no longer have parental responsibility.
For births registered in England or Wales
On a general level this piece of legislation, as well as existing legislation, gave clarification to parental responsibility. In England and Wales if parents are married (or if they have jointly adopted a child), they both acquire parental responsibility. This does not occur in respect of couples who are not married. The birth father can acquire parental responsibility by jointly registering the child’s birth, eg., the birth father would need to be at the registry office to sign the birth register, or sign a statutory declaration if he is unable to attend the registering of the birth. Parental responsibility can occur if he completes a parental responsibility agreement with the mother, or through a parental responsibility order which is made by a court.
Even if the birth father lives with the mother for a long time this does not mean he automatically acquires parental responsibility. Even if the mother dies and the father does not hold parental responsibility it does not mean this would automatically pass onto him on her death.
If both parents have parental responsibility this does not change even if they separate or divorce.
I am not completely conversant in the legalities regarding Scotland, Northern Ireland and oversees, so have used the information contained in the Directgov to inform regarding this.
For births registered in Scotland
A father has parental responsibility if he is married to the mother when the child is conceived, or any time after that date. An unmarried father has parental responsibility if he is named on the child’s birth certificate (from 4 May 2006). Alternatively, unmarried fathers can also be named following a re-registration of the birth.
For births registered in Northern Ireland
A father has parental responsibility if he is married to the mother at the time of the child’s birth. If a father marries the mother after the child’s birth, he has parental responsibility if he lives in Northern Ireland at the time of the marriage. An unmarried father has parental responsibility if he is named, or becomes named, on the child’s birth certificate from 15 April 2002.
For births registered outside the UK
If a child is born overseas and then comes to live in the UK, the parental responsibility rules apply for the UK country in which they live
All parents (including adoptive parents) have a legal duty to financially support their child, whether they have parental responsibility or not.
The Adoption and Children Act 2002 has simplified step-parents and same-sex partners to acquire parental responsibility. Just by marrying a partner who has children will not automatically allow this to happen. To acquire parental responsibility this can occur through a formal agreement or court order. For such an agreement everyone who holds parental responsibility would need to agree.
Other court orders
Parental responsibility can also be applied for through different court orders – Residence, Special Guardianship and Adoption. For step-parents or a same-sex partner, it is probably more a Residence or Adoption Order that would be applicable. There are certain requirements regarding how long a step-parent or same-sex partner has lived with a child. The views of the biological father would need to be sought. If it is a case that the biological father has not been involved with the child, securing a Residence Order may be fairly straight-forward, although any views he may have would need to be considered. If the birth father has parental responsibility this cannot be taken away from him and the Residence Order allows the step-parent or same-sex partner to be able to make decisions on behalf of the child. In respect of an Adoption Order again the birth father’s views would need to be sought.
Given this order completely transfers all legal responsibilities, and in effect the birth father would no longer be the legal parent of the child, a court must be satisfied that it is in the best interest of the child for this to occur. The court would require a full assessment taking into account what is in the best interest of the child, as well as seeking the views of the birth mother, birth father, the step-parent and if the child is old enough, the child. If it is shown that the birth father plays a role in the child’s life, such as through contact, if would be difficult for an adoption order to be granted.
In looking at how these orders pertain to those who are not the birth parents, step-parents or same-sex partners, legal orders can give others parental responsibility. In the past a Residence Order was a way for a relative or close other to care for a child. It was not unusual say for grandparents to go to court to seek a Residence Order to allow them to take responsibility for their grandchild. The Adoption and Children Act 2002 brought in place a new order, that of the Special Guardianship Order.
Special Guardianship Order
The Special Guardianship Order is to meet the needs of children who cannot live with their birth parents and for whom adoption is not appropriate. Courts when considering this would refer to the “Welfare Checklist” principles regarding what is in the best interest of a child.
The Special Guardianship Order identifies who should have parental responsibility to the exclusion of any other person with parent responsibility. There are a couple of exceptions regarding this, such as the circumcision of a child, or living abroad for over a certain number of years, both of which would need the consent of the birth parents who hold parental responsibility, or through the court. The Special Guardianship Order gives the holder the responsibility for the day to day decisions about caring for the child and taking decision regarding the child’s upbringing. The whole idea of the Special Guardianship Order is to provide the legal security, whilst preserving the link between the child and their birth family. So unlike an Adoption Order the Special Guardianship Order allows the relationship with their birth parents not to be severed.
For a Special Guardianship Order to be made the local authority must assess and prepare a report to court as to the suitability of the applicants.
The court may make a Special Guardianship Order on the application of:
- Any guardian of the child
- Any individual in whose favour a Residence Order is in force or has the consent of all those with a Residence Order
- Anyone with whom the child has lived for at least 3 years out of the last 5 years
- Where the child is in the care of the local authority, anyone with the local authority’s consent
- Anyone who has the consent of all those with parental responsibility
- Local authority foster parents may apply as of right where the child has lived with them for at least one year immediately preceding the application
- Anyone else, including the child, who has leave of the court.
Any existing orders, eg., Care Order or Residence Order would be discharged once a Special Guardianship Order is granted.
For more help and advice on this issue call Grandparents Plus on 0300 123 7015, lines are open from 10am – 3pm Monday to Friday. You can also email them at email@example.com.
By Lynne Page, a social worker and member of our Grannyset