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Fathers and the right to parental responsibility

Happy Father’s Day to all the fathers, grandfathers, stepfathers, foster fathers and special guardians! In this article, we look at fathers and parental responsibility, which isn’t always straightforward. (Unlike a mother, a father does not automatically acquire Parental Responsibility when their child is born.)

So what is ‘parental responsibility’? Parental responsibility is a bundle of rights as defined in section 3(1) of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property”.  In practical terms, parental responsibility means the power to make important decisions about a child, for example their education, changing their name, consenting to medical treatment and issues about a child’s religion.

A father will have parental responsibility in the following circumstances:

  1. If he is married to the mother;
  2. If his name is registered (or re-registered) on the birth certificate, if it hasn’t been already; (the law changed so that unmarried fathers who registered or re-registered their name on their child’s birth certificate after 1 December 2003 will have parental responsibility for their child);
  3. He has a residence order made prior to 22 April 2014;
  4. He is named as the resident parent under a Child Arrangements Order.

If these criteria don’t apply, then the father can seek to enter into a voluntary agreement with the mother to acquire parental responsibility. If this is contested, the father can make an application to court to obtain a Parental Responsibility Order.  If the paternity of the child is disputed or in question, it will have to be proven before the matter can be decided.

Although the Children Act 1989 doesn’t provide the criteria for obtaining parental responsibility, helpfully, the case of Re H considered this and set out a three-part test that the court should take into account when determining an application:

  1. Commitment: the court will consider how committed the father is and has been to the child – this does not necessarily mean financial commitment;
  2. Attachment: the court will look at the degree of attachment between the child and father;
  3. Motive: the court will want to establish why the father is making the application and be satisfied that his motive is genuine.

However, the judge in the above case highlighted that the test is only a starting point. Even if the three-strand test has been satisfied, it is possible that a judge still may not make the order. The court’s paramount consideration is the welfare of the child; an order will only be made if they consider it to be in the best interest of the child, taking into consideration all the circumstances.

If you would like advice in relation to parental responsibility or any legal issue relating to children or family matters , please contact 0117 904 6000 and ask to speak to a member of our Family team.

Posted on Jun 13th, 2019 by Lyons Davidson

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