Parental responsibility

The rules about who has parental responsibility are quite complex.

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Contents

  1. What “parental responsibility” means

    1. Legal definition
    2. Dwindling of parental responsibility as a child grows up
    3. Parents without parental responsibility
  2. What things parental responsibility takes in
  3. Using parental responsibility

  4. Who has parental responsibility

    1. The mother
    2. The father
    3. The second female parent
    4. The second male parent
    5. Adoptive parents
    6. An adoption agency
    7. Prospective adopters
    8. Parents appointed by a Parental Order (e.g. after a “Surrogacy Arrangement”)
    9. Guardians
    10. Special guardians (England & Wales only)

  5. Who can get parental responsibility

    1. The father
    2. The second female parent
    3. A step-parent
    4. A local authority
    5. The court
    6. Anyone else
  6. Who doesn’t have parental responsibility
  7. How parental responsibility is lost

What “parental responsibility” means

“Parental responsibility” (or in Scotland, “parental responsibilities and rights”) is the legal responsibility to look after a child (and their property) and to make important decisions on the child’s behalf.

Being a parent and having parental responsibility are not the same thing.  A child’s mother will almost always have parental responsibility, but the father won’t always have it.  It’s also possible for someone else to have parental responsibility, e.g. a step-parent, or a local authority.

Legal definition

England & Wales

Parental responsibility is defined in England & Wales 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

Parental responsibility gives an individual legal rights in respect of the child.  More than one person may hold parental responsibility for a child, and they won’t lose that parental responsibility because some other person subsequently gets parental responsibility for the child.

To change a child’s name, you need the consent of all people with parental responsibility, or a court order permitting the change of name.

Scotland

In England, Wales, and Northern Ireland, the law talks about “parental responsibility”, but in Scotland, the same concept is called parental responsibilities and parental rights, and it’s defined differently.

For a child under the age of 16, parental responsibilities are defined as —

the responsibility —

  • to safeguard and promote the child’s health, development and welfare
  • to provide direction and guidance to the child, in a manner appropriate to the stage of development of the child
  • if the child isn’t living with the parent, to maintain personal relations and direct contact with the child on a regular basis
  • to act as the child’s legal representative

For a child under the age of 16, parental rights are defined as —

the right —

  • to have the child living with the parent or otherwise to regulate the child’s residence
  • to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing
  • if the child isn’t living with the parent, to maintain personal relations and direct contact with the child on a regular basis
  • to act as the child’s legal representative

In Scotland, parental rights only last until the child is 16 years old.
For a child over the age of 16 (and under the age of 18), parental responsibilities are defined as —

the responsibility to provide guidance to the child, in a manner appropriate to the stage of development of the child

Thus for a child under 16, parents can (and must) provide direction and guidance to the child, but once the child is 16, they can only provide guidance.

More than one person may hold parental responsibilities and rights for a child, and they won’t lose those responsibilities and rights because some other person subsequently gets parental responsibilities and rights for the child.

Northern Ireland

Parental responsibility has the same definition in Northern Ireland as it does in England & Wales, which is —

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

Parental responsibility gives an individual legal rights in respect of the child.  More than one person may hold parental responsibility for a child, and they won’t lose that parental responsibility because some other person subsequently gets parental responsibility for the child.

To change a child’s name, you need the consent of all people with parental responsibility, or a court order permitting the change of name.

Dwindling of parental responsibility as a child grows up

The law emphasises parental “responsibilities” over parental “rights”, and in fact this is why the name of “parental responsibility” was chosen.  Any rights that parents do have, exist merely because of their responsibilities towards their child — and they exist only as long as they are needed to fulfil those responsibilities.  (Scots law goes a step further than English (and Northern Ireland) law, by clearly distinguishing and limiting the responsibilities from the rights that a parent has on a statutory basis, but in fact English and Scots law are very similar in the end.)

Parental responsibility also becomes less and less important and extensive as a child gets older.  In Scots law, this is clearly set out in the statutory definition (above) — by limiting parents’ responsibilities and rights to “a manner appropriate to the stage of development of the child”.  But in English law the same principle applies (in the common law).  In the case of Hewer v Bryant [1970] 1 QB 357, in the Court of Appeal, Lord Denning MR ↗ described how the parental right to custody of a child (a concept which is now embodied as part of parental responsibility) “dwindles” as the child grows up —

… the legal right of a parent to the custody of a child ends at the eighteenth birthday and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, the older he is.  It starts with a right of control and ends with little more than advice.

In the case of Gillick v West Norfolk and Wisbech Area Health Authority & DHSS [1985] UKHL 7, [1986] 1 AC 112 ↗, the House of Lords made clear that the powers parents have over their children (i.e. parental “rights”) are derived from their parental “duty”, and only exist as long as it’s needed to carry out that duty.

Lord Fraser ↗ held, in the Gillick case, that —

… parental rights to control a child do not exist for the benefit of the parent.  They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child, and towards other children in the family.

And, also in the Gillick case, Lord Scarman ↗ held that —

Parental rights relate to both the person and the property of the child — custody, care, and control of the person and guardianship of the property of the child.  But the common law has never treated such rights as sovereign, or beyond review and control.  Nor has our law ever treated the child as other than a person with capacities and rights recognised by law.  The principle of the law … is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child.  The principle has been subjected to certain age limits set by statute for certain purposes, and in some cases the courts have declared an age of discretion at which a child acquires before the age of majority the right to make his (or her) own decision.  But these limitations in no way undermine the principle of the law, and should not be allowed to obscure it.

And he went on to say that —

The underlying principle of the law … is that parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.

The Gillick case has since given rise to the concept of “Gillick competent” — which is when a child has “sufficient understanding and intelligence” to make their own decision about something.  But the point at which a child becomes Gillick competent isn’t always an obvious or simple matter; it depends on —

  • the child’s intelligence and maturity
  • the matter in question; for example, a child might be “Gillick competent” as to changing their surname, but not as to consenting to medical treatment

As with other legal matters, the courts have the final decision as to whether a child is Gillick competent or not.

Parents without parental responsibility

Even if a parent doesn’t have parental responsibility, that doesn’t mean they don’t have any rights or obligations towards their child.

If the parent has a relationship with their child which amounts to “family life” under article 8 ↗ of the European Convention on Human Rights ↗, then official bodies must respect that right.

And, for example, absent parents must maintain their child, even if they don’t have parental responsibility (according to the Child Support Act 1991 ↗, in Great Britain).

This is made clear in section 3(4) ↗ of the Children Act 1989, which provides that —

The fact that a person has, or does not have, parental responsibility for a child shall not affect —

  1. (a) any obligation which he may have in relation to the child (such as a statutory duty to maintain the child); or
  2. (b) any rights which, in the event of the child’s death, he (or any other person) may have in relation to the child’s property.

What things parental responsibility takes in

In Scots law, there is a partial list of what things parental responsibility is made up of, in the statutory definition (above).  In English and Northern Ireland law, there is (deliberately) no list at all.  This is because it was thought to be impractical to draw one up — it would have had to change from time to time (to meet changing needs) and it would have had to take into account the age and maturity of the child.

However, parental responsibility almost certainly includes (depending on the age, maturity, and circumstances of the child) —

  • bringing up the child
  • (especially for older children) giving the child direction, guidance, and advice
  • having personal relations and contact with the child
  • protecting the child
  • maintaining the child
  • educating the child
  • choosing the child’s religion (if any)
  • consenting to any medical treatment for the child
  • consenting to the child’s marriage (if necessary)
  • consenting to the child’s adoption (if necessary)
  • vetoing the issue of the child’s passport (if necessary)
  • managing the child’s property
  • choosing the child’s name
  • acting as the child’s legal representative
  • disposing of the child’s corpse (in the case of the child’s death)
  • appointing the child’s guardian, in a will (in the case of the parent / guardian’s own death)

Parental responsibility may also include —

  • the right to get (and have) information about the child
  • the power to control publicity about the child
  • sharing liability for criminal offences committed by the child

Using parental responsibility

Generally speaking, someone who has parental responsibility for a child can act alone in any matter — they don’t need to always agree or consult with the child’s other parent / guardians.  Section 2(7) ↗ of the Children Act 1989 provides that —

Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part ↗ shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child.

However, there’s a small number of important decisions where a person caring for the child must either —

  • get the consent of everyone with parental responsibility for the child, or
  • get leave from the court

— before they can carry out that decision (as held by Dame Elizabeth Butler-Sloss ↗, President of the Family Division, in Re J (Specific Issue Orders) (Muslim Upbringing and Circumcision) [1999] EWCA Civ 3022 ↗).

This might seem to be in conflict with section 2(7), but as Mr Justice Holman explained in Re PC (Change of Surname) [1997] 2 FLR 730 —

The words “but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child” in s. 2(7) ↗ do not preclude that the consent of more than one person may also be required by some other source of law than an enactment, notwithstanding the first limb of s. 2(7) ↗.

Decisions which belong to this “small number of important decisions” include —

  • changing the child’s name  (See: Re PC)
  • changing the child’s school  (See: Re G (a Minor) (Parental Responsibility: Education) [1994] 2 FLR 964, CA)
  • the immunisation of the child  (See: Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148 ↗)
  • the circumcision of the child  (See: Re J ↗)
  • the sterilisation of the child  (See: Re J ↗)

  • taking the child outside the U.K., if —

    • a Child Arrangements Order is in force which includes arrangements relating to who the child is to live with, or when the child is to live with any person (under section 13(1) of the Children Act) — except for trips of less than a month
    • a Residence Order is in force (under section 13(1)) — except for trips of less than a month
    • a Special Guardianship Order is in force (under section 14C(3)) — except for trips of less than 3 months
    • a Care Order (or interim Care Order) is in force (under section 33(7)) — except for trips of less than a month

Section 2(8) ↗ also makes clear that a person using their parental responsibility cannot act in a way which is incompatible with any court order —

The fact that a person has parental responsibility for a child shall not entitle him to act in any way which would be incompatible with any order made with respect to the child under this Act.

But in the end, any matter which parents cannot agree on must be resolved (if there is no other way of coming to an agreement) by one of the parents taking the matter to court.

Who has parental responsibility

The mother

A child’s (birth) mother automatically has parental responsibility at birth.
The mother will also have parental responsibility if —

The father

If the parents were married at the time of birth, then each parent automatically has parental responsibility.
The father will also have parental responsibility if —

Otherwise, if the father is not married to the mother at the time of birth, the rules depend on when and where the child was born:

For births registered in the U.K. and the Bailiwick of Guernsey

A child’s father has parental responsibility in any of the following cases:

  • if the father is married to the mother at the time of the conception, or at any time afterwards
  • if the birth has been registered or re-registered (otherwise than by a declaration / decree of parentage) by both parents in England or Wales on or after 1st December 2003, and the father’s details are recorded on the birth registration
  • if the birth has been registered or re-registered (otherwise than by a declaration / decree of parentage) by both parents in Scotland on or after 4th May 2006, and the father’s details are recorded on the birth registration
  • if the birth was originally registered by both parents in Northern Ireland on or after 15th April 2002, and the father’s details are recorded on the birth registration (re-registration doesn’t give the father parental responsibility)
  • if the birth has been registered by both parents in the Bailiwick of Guernsey on or after 4th January 2010, and the father’s details are recorded on the birth registration
  • if the father gets a Parental Responsibility Order or Residence Order
  • if the father is awarded parental responsibilities and rights under section 11(2)(b) ↗ of the Children (Scotland) Act 1995 ↗
  • if the father gets a Child Arrangements Order which names him as a person with whom the child is to live
  • if the father enters into a Parental Responsibility Agreement with the mother
For births registered in the Isle of Man

A child’s father has parental responsibility in any of the following cases:

  • if the father is married to the mother at the time of the birth, or at any time afterwards, or at the time of conception
  • if the birth was originally registered by both parents on or after 1st November 2013, and the father’s details are recorded on the birth registration (re-registration doesn’t give the father parental responsibility)
  • if the father gets a Parental Responsibility Order or Residence Order
  • if the father enters into a Parental Responsibility Agreement with the mother
For births registered in the Bailiwick of Jersey

A child’s father has parental responsibility in any of the following cases:

  • if the father is married to the mother at the time of the conception, or at any time afterwards, and the father has acknowledged himself to be the father of the child
  • if the father gets a Parental Responsibility Order or Residence Order
  • if the father enters into a Parental Responsibility Agreement with the mother
For births registered outside the U.K.

If the child was born outside the U.K., but is now resident in the U.K., a child’s father has parental responsibility under the same rules as though the child were born in the part of the U.K. where they’re now living.

The second female parent

If the child was conceived through artificial insemination or IVF, and has a second female parent under the Human Fertilisation and Embryology Act 2008, then she has parental responsibility if —

  • she was married to, or in a civil partnership with, the mother when the mother became pregnant

and for births registered in England, Wales, or Northern Ireland, if —

  • she married, or entered into a civil partnership with, the mother at any time before the child’s birth
  • she’s resident in England, Wales, or Northern Ireland, and marries, or enters into a civil partnership with, the mother after the child’s birth

Note that this assumes the second female parent is recognised as a second parent according to the definition above.

A woman who is a second parent will also have parental responsibility if —

The second male parent

A man who is a second parent will have parental responsibility if —

Adoptive parents

If a child has been adopted, each adoptive parent named on the adoption certificate will have parental responsibility.  Anyone who had parental responsibility for the child prior to adoption loses their parental responsibility upon adoption.

An adoption agency (England & Wales)

An adoption agency (in England & Wales) can be —

An adoption agency will have parental responsibility for a child when it has placed the child for adoption, or it has been authorised to place the child for adoption —

The child’s parents / guardians / special guardians who originally had parental responsibility won’t lose their parental responsibility until an Adoption Order has been made.  However, the adoption agency can decide to restrict the parental responsibility of any parent, guardian, special guardian, or prospective adopter who has parental responsibility.  In other words — the adoption agency has the final say in any important decision about the child (except where the law specifically requires the consent of everyone with parental responsibility).

The adoption agency’s parental responsibility lasts until an Adoption Order is made (which is when the child has actually been adopted, and the adoption process is complete).

Prospective adopters (England & Wales)

In England & Wales, when a child has been placed for adoption with prospective adopters, the prospective adopters will have parental responsibility.

However, their parental responsibility can be restricted by the adoption agency who’ve been authorised to place the child for adoption.

The child’s parents / guardians / special guardians who originally had parental responsibility won’t lose their parental responsibility though, until an Adoption Order has been made.

Parents appointed by a Parental Order (e.g. after a “Surrogacy Arrangement”)

If a child has been carried and born by a surrogate mother, then another couple (at least one of whom must be the child’s biological parent) can apply to the court for a Parental Order, which declares them the legal parents.

The making of a Parental Order is legally very similar to an adoption — it completely breaks the legal link to the legal parents before the order is made (including the surrogate (birth) mother), and it revokes any court orders that were in force up until that point.  Anyone who had parental responsibility for the child prior to the making of the Parental Order loses their parental responsibility when the Parental Order is made.

Once the Parental Order is made, the parents can re-register the child’s birth as their child, and the parents named on the child’s birth certificate will each have parental responsibility.

Note that surrogacy arrangements aren’t enforceable by law.  The birth mother (and anyone else with parental responsibility when the child is born) are entitled — if they wish — not to go ahead with the surrogacy arrangement, and to keep their child.

Guardians

A guardian (or testamentary guardian) is someone who has been appointed to have parental responsibility of a child on the death of a parent (or guardian).  A guardian can be appointed by any parent with parental responsibility, another guardian, or a special guardian in the event of their own death.  Guardians can also be appointed by the court in certain situations.

For children resident in England, Wales and Northern Ireland (at the time of the guardian’s appointment), the guardian won’t always have parental responsibility for the child.  A guardian only has parental responsibility in one of the following cases:

  • the child has no living parent who has parental responsibility for them
  • the person who appointed the guardian held a Residence Order at the time of their death
  • the person who appointed the guardian held a Child Arrangements Order at the time of their death which named them as a person with whom the child was to live
  • the guardian was appointed by the child’s only (or last surviving) special guardian

For children resident in Scotland (at the time of the guardian’s appointment), the guardian has parental responsibility on the death of the parent, even if there’s another parent or guardian with parental responsibility still available.

Special guardians (England & Wales, and Isle of Man only)

If a special guardian has been appointed for a child, the special guardian has parental responsibility as long as the Special Guardianship Order is in force.  The special guardian can exercise parental responsibility to the exclusion of all others with parental responsibility (including parents and holders of Residence Orders) except for another special guardian.

To change the child’s forenames, all special guardians of the child must give their consent; no-one else with parental responsibility need give consent.

However, to change the surname of the child, every person who has parental responsibility must give their written consent, or the court must give their leave.

Who can get parental responsibility

The father

A father who doesn’t have parental responsibility can get it by —

  • marrying the mother  (Not if the birth was registered in the Bailiwick of Jersey)
  • registering the child’s birth with the mother and recording his details in —
    • England or Wales (on or after 1st December 2003)
    • Scotland (on or after 4th May 2006)
    • Northern Ireland (on or after 15th April 2002)
    • the Isle of Man (on or after 1st November 2013)
    • the Bailiwick of Guernsey (on or after 4th January 2010)
  • re-registering the child’s birth with the mother and recording his details (otherwise than by a declaration / decree of parentage) — after the appropriate date as above — provided that —
    • the birth was originally registered in England, Wales, Scotland, or the Bailiwick of Guernsey  (Not Northern Ireland, the Isle of Man, or the Bailiwick of Jersey)
    • no other man is legally recognised as the father, and the original birth registration shows no father’s details (or they’ve been removed)
  • getting a Parental Responsibility Order or Residence Order
  • being awarded parental responsibilities and rights under section 11(2)(b) ↗ of the Children (Scotland) Act 1995 ↗
  • getting a Child Arrangements Order which names him as a person with whom the child is to live
  • entering into a Parental Responsibility Agreement with the mother

Note that if another man is wrongly registered as the father on the child’s birth certificate, the wrong father’s details must be removed before the child’s birth can be re-registered with the biological father’s details.

A Declaration of Parentage (in England & Wales / Northern Ireland) or Decree of Parentage (in Scotland) will establish who the legal parents are, and if necessary, the child’s birth will be automatically re-registered to reflect the change.  However this will not give the father parental responsibility on its own — he must get parental responsibility in some other way, such as by applying for a Parental Responsibility Order.

The second female parent

For a child born as a result of fertility treatment at a licensed clinic, where —

  • the mother became pregnant on or after 6th April 2009
  • the mother made a formal agreement with the second parent before becoming pregnant for her to act as the second parent

then the second parent can get parental responsibility by —

  • registering the child’s birth with the mother and recording her details
  • marrying, or entering into a civil partnership with, the mother — provided that —
    • the birth was originally registered in England, Wales, or Northern Ireland  (Not Scotland)
    • the second parent and the child are both resident in England, Wales, or Northern Ireland
    • the original birth registration shows no father or second parent’s details
  • re-registering the child’s birth with the mother and recording her details — provided that —
    • the birth was originally registered in England, Wales, or Scotland  (Not Northern Ireland)
    • the original birth registration shows no father or second parent’s details
  • getting a Parental Responsibility Order or Residence Order
  • being awarded parental responsibilities and rights under section 11(2)(b) ↗ of the Children (Scotland) Act 1995 ↗
  • getting a Child Arrangements Order which names her as a person with whom the child is to live
  • entering into a Parental Responsibility Agreement with the mother

A step-parent

If a child’s parent already has parental responsibility, and they’re married or in a civil partnership with someone else — that is, the child’s step-mother or step-father — then the step-parent can get parental responsibility by —

  • entering into a parental responsibility agreement with the child’s parent (if that parent has sole parental responsibility) or both parents (if both parents have parental responsibility)
  • getting a Parental Responsibility Order
  • being awarded parental responsibilities and rights under section 11(2)(b) ↗ of the Children (Scotland) Act 1995 ↗
  • getting a Residence Order (although they will only have parental responsibility while the Residence Order is in force)
  • getting a Child Arrangements Order which names them as a person with whom the child is to live (although they will only have parental responsibility while the Child Arrangements Order is in force)
  • adopting the child

Note that in the past it was much more common for step-parents to apply to adopt their step-child.  The law was changed (in England & Wales) in 2002 to allow step-parents to get parental responsibility much more easily — that is, through an agreement with the other parents, or by a court order.

Adopting your step-child is generally more difficult to do.  The court will only agree to it if they believe it’s in the best interests of the child.  Normally you’d need the consent of everyone with parental responsibility — including the other birth parent — but the court may decide to award the adoption regardless, if it’s in the best interests of the child.

Adopting your step-child doesn’t affect your spouse’s parental responsibility.  After the adoption, you’d have joint parental responsibility.  However, the child’s other birth parent (and anyone else with parental responsibility) would lose their parental responsibility.  It also cancels out any existing orders, such as Contact Orders, Residence Orders, and Special Guardianship Orders.

A local authority

England & Wales

A local authority in England & Wales can get parental responsibility if —

A local authority does not automatically get parental responsibility —

  • if a court makes a Child Assessment Order under section 43 ↗ of the Children Act 1989
  • if a court makes a Supervision Order under section 31(1)(b) ↗ of the Children Act 1989
  • if a court makes an interim Supervision Order under section 38 ↗ of the Children Act 1989
  • if a court makes an Education Supervision Order under section 36 ↗ of the Children Act 1989
  • by providing accommodation for a child under section 20 ↗ of the Children Act 1989

If a local authority has parental responsibility for a child, e.g. through a Care Order, this doesn’t mean that anyone else loses their parental responsibility (unless the court so orders).  However, the local authority can decide the extent to which anyone else with parental responsibility may meet that parental responsibility.  Changing the child’s surname, though, is an exception — everyone with parental responsibility still has to consent to it.

To change the child’s forenames, only the local authority needs to consent; no-one else with parental responsibility need give consent.

However, to change the surname of the child, everyone who has parental responsibility must give their written consent (that is, the local authority, plus everyone else with parental responsibility), or else the court must give their leave.

Scotland

A local authority in Scotland can get some parental responsibilities and rights if the court makes a Permanence Order under section 80 ↗ of the Adoption and Children (Scotland) Act 2007 ↗.  The court will decide to what extent the local authority will have parental responsibilities and rights, and it can also decide to —

  • partially or completely revoke the parental responsibilities and rights of anyone else who holds them when the order is made
  • partially or completely award parental responsibilities and rights to any other carer of the child

But a local authority with a Permanence Order won’t automatically have the responsibility and right to change a child’s name — it depends on the extent to which the court has granted it the necessary responsibilities and rights which allow it to take that decision.

A local authority does not automatically get parental responsibilities and rights —

However a person applying for a Child Protection Order can, at the same time, apply for a parental responsibilities and rights direction (under section 42 ↗ of the Children’s Hearings (Scotland) Act 2011), directing how parental responsibilities and rights should be fulfilled or exercised.

A local authority could formerly have got parental responsibilities and rights by a court making a Parental Responsibilities Order under section 86 ↗ of the Children (Scotland) Act 1995 (not to be confused with a Parental Responsibility Order as in the rest of the U.K.).  However, this section has now been repealed, and this type of order is no longer possible.

Northern Ireland

A local authority in Northern Ireland can get parental responsibility if the court makes —

A local authority does not automatically get parental responsibility —

  • if a court makes a Child Assessment Order under article 62 ↗ of the Children (Northern Ireland) Order 1995
  • if a court makes a Supervision Order under article 50(1)(b) ↗ of the Children (Northern Ireland) Order 1995
  • if a court makes an interim Supervision Order under article 57 ↗ of the Children (Northern Ireland) Order 1995
  • if a court makes an Education Supervision Order under article 55 ↗ of the Children (Northern Ireland) Order 1995
  • by providing accommodation for a child under article 21 ↗ of the Children (Northern Ireland) Order 1995

If a local authority has parental responsibility for a child, e.g. through a Care Order, this doesn’t mean that anyone else loses their parental responsibility (unless the court so orders).  However, the local authority can decide the extent to which anyone else with parental responsibility may meet that parental responsibility.  Changing the child’s surname, though, is an exception — everyone with parental responsibility still has to consent to it.

To change the child’s forenames, only the local authority needs to consent; no-one else with parental responsibility need give consent.

However, to change the surname of the child, everyone who has parental responsibility must give their written consent (that is, the local authority, plus everyone else with parental responsibility), or else the court must give their leave.

The court

England & Wales

The High Court in England & Wales will get parental responsibility if it makes an order making the child a ward of court, under section 41(1) ↗ of the Senior Courts Act 1981 ↗.

A child cannot be made a ward of court if they are subject to a Care Order, under section (100)(2) ↗ of the Children Act 1989 ↗ — and if a Care Order is made with respect to a child who is already a ward of court, the wardship will come to an end at that point (under section (91)(4) ↗).

However, a child (who is not subject to a Care Order) will be made a ward of court — giving the High Court parental responsibility for the time being — as soon as an application is made for such an order, by virtue of section 41(2) ↗ of the Senior Courts Act 1981.  This will last until one of the following happens —

  • the High Court makes an order making the child a ward of court
  • the application is determined, but no such order is made (under rule 12.41 ↗ of the Family Procedure Rules ↗)
  • the High Court orders that the child no longer be a ward of court, under section 41(3) ↗ of the Senior Courts Act 1981

An application for wardship can be made by —

  • any person “with a genuine interest in or relation to the child”
  • the child themself
  • a local authority, with the court’s permission

When a child is made a ward of court, the court “takes over the ultimate responsibility for the child” (see: Re E (SA) (A Minor) [1984] 1 WLR 156) and no important step or decision can be made in the child’s life without the court, although day-to-day care of the child will be given to an individual or a local authority (under paragraph 1.3 ↗ of Practice Direction 12D (FPR) ↗).  Furthermore, the child cannot be taken out of England & Wales without the leave the court.

However, no-one loses parental responsibility just because a child becomes a ward of court (unless the court orders otherwise).

The court can make a wide range of orders for the child’s protection, but the most common are —

  • to restrain publicity
  • to prevent an undesirable association
  • relating to medical treatment
  • to protect abducted children, or children where the case has another substantial foreign element
  • for the return of children to and from another state
Scotland

It isn’t possible for a court in Scotland to make a child a “ward of court” (as can the High Courts in England & Wales and Northern Ireland).  Therefore the court cannot hold parental responsibility itself.

It’s possible to make the following kinds of court order in Scotland, though, for a child’s protection —

  • a Child Assessment Order, under section 35 ↗ of the Children’s Hearings (Scotland) Act 2011 ↗
  • a Child Protection Order, under section 37 ↗ of the Children’s Hearings (Scotland) Act 2011
  • an interdict (or interim interdict) prohibiting medical treatment from being given to a child
  • an interdict (or interim interdict) prohibiting the child being taken out of the U.K.
  • an order confirming that the child’s removal from the jurisdiction is contrary to the wishes of the court
  • an order awarding a person custody of the child or care and control
  • an order specifying that a person’s consent to the removal of the child from the jurisdiction be necessary
  • an order requiring the surrender of a British passport and prohibiting the making of a further passport application or having a passport
Northern Ireland

The High Court in Northern Ireland will get parental responsibility if it makes an order making the child a ward of court, under section 26(1) ↗ of the Judicature (Northern Ireland) Act 1978 ↗.

A child cannot be made a ward of court if they are subject to a Care Order, under article (173)(1) ↗ of the Children (Northern Ireland) Order 1995 ↗ — and if a Care Order is made with respect to a child who is already a ward of court, the wardship will come to an end at that point (under article (179)(4) ↗).

However, a child (who is not subject to a Care Order) will be made a ward of court — giving the High Court parental responsibility for the time being — as soon as an application is made for such an order by the issue of summons (under Order 90 rule 3 of the Rules of the Court of Judicature (Northern Ireland) 1980 ↗), by virtue of section 26(2) ↗ of the Judicature (Northern Ireland) Act 1978.  This will last until one of the following happens —

  • the High Court makes an order making the child a ward of court
  • an application for an appointment for the hearing of the summons is not made within 21 days of the issue of the summons (under Order 90 rule 5(1)(a) of the RCJ (NI) 1980)
  • the application is determined, but no such order is made (under Order 90 rule 5(1)(b) of the RCJ (NI) 1980)
  • the High Court orders that the child no longer be a ward of court, under section 26(3) ↗ of the Judicature (Northern Ireland) Act 1978

When a child is made a ward of court, “ultimate responsibility for them rests with the court” (see: G and D [2010] NIFam 6 ↗) and no important step or decision can be made in the child’s life without the court, although day-to-day care of the child will be given to an individual or a local authority.  Furthermore, the child cannot be taken out of Northern Ireland without the leave the court.

However, no-one loses parental responsibility just because a child becomes a ward of court (unless the court orders otherwise).

Anyone else

Other people can get parental responsibility of a child by —

  • getting a Residence Order (although they will only have parental responsibility while the Residence Order is in force)
  • getting a Child Arrangements Order which names them as a person with whom the child is to live (although they will only have parental responsibility while the Child Arrangements Order is in force)
  • getting an Emergency Protection Order
  • being appointed a guardian by a will or by the court, on the death of one of the child’s parents
  • being appointed a special guardian (England & Wales, and Isle of Man only)
  • adopting the child

Who doesn’t have parental responsibility

The following groups of people won’t have normally have parental responsibility unless they’ve got parental responsibility in some other way —

  • foster carers, or anyone acting in loco parentis (in the place of a parent)
  • holders of Contact Orders

How parental responsibility is lost

Parental responsibility cannot be given up, transferred, or delegated to anyone else.  Parental responsibility is only lost —

  • in England, Wales, or Northern Ireland — when the child reaches the age of 18 years (although they can legally change their own name at 16)
  • in Scotland — when the child reaches the age of 16 years (after this point, parents lose their parental rights, and the only parental responsibility they keep is the responsibility to provide guidance to the child)
  • if the child is adopted
  • if the court issues a Parental Order with respect to the child, appointing two other people as the legal parents
  • if parental responsibility is taken away by the court
  • for a person who holds a Residence Order or Child Arrangements Order (naming them as a person with whom the child is to live) but isn’t a parent or guardian — when the order comes to an end
  • for a local authority who holds parental responsibility because of a Care Order, or Permanence Order — when the order is revoked or comes to an end
  • for a local authority who holds parental responsibility because of a Placement Order — when the order is revoked or an Adoption Order is made

Parental responsibility is not lost solely because —

  • someone else gains parental responsibility
  • the parents (or a parent and a step-parent) get divorced, or dissolve their civil partnership
  • it’s shown that the father isn’t the biological father, for example by a DNA test report
  • the wrong father’s details are removed from the birth registration (unless done by a court order such as a Declaration of Parentage, and the court also removes parental responsibility)

If you want to remove someone’s parental responsibility, you should apply to the court for a Specific Issue Order.  This application can only be made by someone who has parental responsibility, or the child themself (if they’re considered mature enough by the court).  However, parental responsibility is only revoked in exceptional circumstances — you’ll have to show that it’s in the best interests of the child.  Absence of contact isn’t thought to be a good enough reason on its own to remove parental responsibility.

Anyone can apply to the court for a for a Declaration of Parentage, provided that they have sufficient personal interest in the outcome, but this doesn’t guarantee any decision about parental responsibility.

One common situation is when a child’s legal father has parental responsibility, but he isn’t the biological father.  If the mother wants to change the child’s name in this sort of case, the "wrong" father will nevertheless need to give his consent, even if his non-paternity is proven by a DNA test.  A person can only lose parental responsibility by order of the court.

Note that if the birth certificate is corrected to remove the wrong father’s details — and even if the biological father’s details are later added — the originally registered father won’t lose his parental responsibility.  It must be removed by a court.