Let’s start with the basics – what is parental responsibility?
Following separation, many parents struggle to grasp the concept of parental responsibility and what it means in legal and practical terms when both parents have it and can separately exercise the legal powers it confers upon them during their time with the child. When this becomes an issue and there is a dispute, we often hear parents talking about their “parental rights”, so let’s start by dispelling the notion of “rights” as being the primary focus of the Children Act 1989.
Under section 3 of the Children Act 1989, “parental responsibility” is defined 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.”
Who has parental responsibility?
Mothers automatically acquire parental responsibility on the birth of the child. Whether and how a second parent obtains parental responsibility depends on either the marital status of the parents at the time of/after the birth (in the case of opposite-sex parents), or the circumstances of conception and the broader circumstances of the family (in the case of same-sex parents).
Fathers of children born after 1 December 2003 who are neither married to, have never been married to, or are not the civil partner of the child’s mother will acquire parental responsibility if they are named as the father on the birth certificate.
If the second parent does not acquire parental responsibility automatically, it can be obtained via a parental responsibility agreement or court order.
Stepparents or extended family members may also acquire parental responsibility by agreement or by court order depending on the circumstances.
Parental responsibility ends when either:
- A child reaches 18;
- The child is 16 or 17 and marries;
- A Child Arrangements Order ends or is discharged (i.e., all of the terms of the Order have been complied with in full); or
- If a court makes an order terminating parental responsibility.
What are the practical implications of parental responsibility and the challenges for separated parents who cannot agree?
In practice, a person with parental responsibility has the legal power to make decisions concerning the upbringing of the child, including:
- Where the child should live;
- Where the child attends school;
- Health and medical decisions; and
- Whether the child can travel abroad.
It also means that a person with parental responsibility is entitled to obtain certain information about the child in question, such as medical and education records.
What if I’m separated from the other parent? What standards/expectations are there from a parental responsibility perspective?
There is no “rule of thumb” as to the extent you should involve the other parent in any given decision regarding your child; this will ultimately depend on the surrounding factors.
In determining the level of involvement required from the other parent in any decision concerning your child, there are a number of overarching principles to consider, including:
- Would it be in your child’s best interests to seek agreement from/inform the other parent to reduce potential conflict and dispute?
- Would it be incompatible with any existing Order that may be in place in respect of your child to seek or not seek agreement from/notify the other parent?
- Would making the decision unilaterally/without informing the other parent be inconsistent with the other parent’s parental responsibility?
When “must” you seek agreement from the other parent?
There are certain decisions that you must seek agreement on from the other parent (for example, a change of the child’s surname, and the removal of the child from the UK for a period of more than one month).
When “should” you seek agreement from the other parent ?
You should seek agreement from the other parent on:
- Where the child will live
- Where the child will be educated (which school the child will attend)
- Health and medical treatment (for example, whether the child should receive vaccinations)
- Religious upbringing
- Travel abroad (for any duration)
Let’s consider a real-life example – A v A [2004] EWHC 142
In this case, the parents of two children had separated and divorced in acrimonious proceedings. The children resided with the mother and had contact with the father.
Several years later, the father applied for a joint residence order and a defined contact order in relation to the children on the basis that the mother was making unilateral decisions in respect of the children’s health and education. Following the father’s objections to a proposed school change for their daughter, the mother asserted that the daughter was frightened of the father and stopped contact. At the time the proceedings were determined, the son was aged 11 and the daughter was aged 9.
Before the proceedings concluded, the parents were able to agree a schedule of issues setting out those matters upon which each parent could exercise their parental responsibility unilaterally or those which required agreement.
The schedule provided as follows:
- Decisions that could be taken independently and without any consultation or notification to the other parent:
- How the children were to spend their time during contact
- Personal care for the children
- Activities undertaken
- Religious and spiritual pursuits
- Continuance of medical treatment prescribed by the GP
- Decisions where one parent would always need to inform the other parent of the decision, but did not need to consult or take the other parent’s views into account:
- Medical treatment in an emergency
- Booking holidays or taking the children abroad in contact time
- Planned visits to the GP and the reasons for this
- Decisions that one parent would need to both inform and consult the other parent about prior to making the decision:
- Schools the children are to attend, including admissions applications. With reference to which senior school their daughter should attend. This was to be decided taking into account their daughter’s own views and in consultation and with advice from her teachers.
- Contact rotas in school holidays
- Planned medical and dental treatment
- Stopping medication prescribed for the children
- Attendance at school functions so they can be planned to avoid the parents meeting at functions wherever possible
- Age that the children should be able to watch videos (i.e., videos recommended for children over 12 and 18)
I’m worried about having arguments with the other parent. Is there any way we can manage this?
While it is always hoped that separated parents will be able to communicate amicably with each other about their child, this may not always be possible. In these circumstances, there are several resources and services that can help.
Online platforms
There are a number of online platforms that provide separated parents with helpful tools and services to assist with day-to-day co-parenting and communications with the other parent.
Providers include:
Depending on which platform you choose, the tools and services available can include:
- Joint/shared calendars for scheduling and tracking time with children during term time and holidays, with notifications/reminders for events, activities and meetings
- Journals for parents to keep notes for private use and for sharing with the other parent
- Financial management systems (for example, expense logs)
- Digital “banks” to store things such as insurance details, medical information, shared files, photos, videos, etc. for private use and for sharing with the other parent
- Texting and message boards
- To-do/chore lists and shopping lists
- Meal planning tools (for example, grocery lists, recipe boxes)
The Handover Book
The Handover Book (“the Book”) is a co-parenting plan in the form of a book, which is intended to be exchanged between parents at handover. Before using the Book, parents will often have a session with a professional, such as a mediator, consultant or therapist, to discuss how they will use the Book to ensure that it is used consistently, in a child-focused, constructive way.
The Book covers practical matters, such as:
- Contact arrangements
- Education
- Healthcare
- Food
- Bathroom and bedtime routines
- Screen time
Nothing in the Book is “set in stone”, rather the Book is updated as time passes to reflect any changes to the child’s needs.
Planning Together for Children
Planning Together for Children is a course that promotes co-operative parenting. It helps parents to prioritise the needs of their children while they navigate through the various co-parenting practicalities to consider on separation and/or while living apart.
The aim of the course is to protect children from the detrimental effects of parental conflict, encouraging parents to set aside their feelings so far as possible and instead to collaborate and consider how they can communicate and co-operate to agree parenting arrangements constructively with minimal court involvement.
Planning Together for Children is not currently available for parents outside the court process, or to those who wish to refer themselves, but the Parenting Plan is available for anyone to use (see below).
Referrals to Planning Together for Children
- The court may order you to complete the course
If you decide to make an application to the court, one of the options available to the court at the first hearing is to order you and the other parent to take part in a Planning Together for Children course.
- A Family Court Adviser (“FCA”) may refer you to the course
A FCA can make a request to the court for you to attend a Planning Together for Children course. Before recommending a referral, the FCA will undertake an assessment using the Cafcass’ Child Impact Assessment Framework to determine any risks and whether completing the course is suitable for you.
The FCA can request the referral before the first court hearing (which may mean that you attend more quickly) or at any time after the first hearing, if the court has not ordered it, but there is agreement that this may benefit you and your child.
If the court considers such a referral is not appropriate and chooses not to order your attendance at a Planning Together for Children course, the FCA will not make a referral.
If you fail to attend a Planning Together for Children course when ordered to do so, the court may reorder it and will expect you to take part.
Once referred, communications between co-parents can be addressed in each of the three parts of the Planning Together for Children programme:
- E-learning
- Group workshop
- The Parenting Plan
Parenting Plan
A Parenting Plan is a written agreement between separated parents on the practicalities concerning their child, setting out clearly what arrangements and actions have been agreed to meet the needs of their child.
Agreeing on a Parenting Plan has many benefits:
- It encourages parents to put their feelings aside and focus on the needs of their child, so that they may come to an agreement on a constructive co-parenting approach that is tailored appropriately to their child.
- It gives parents’ clarity as to practicalities, arrangements and expectations, and offers a “go-to” for reference in the event of dispute.
- An effective Parenting Plan should (hopefully) mean minimal court involvement (and thereby avoid the cost, inconvenience and acrimony of attending court).
- It gives the child a sense of stability and security, reinforcing that they are being prioritised and that their parents are acting in their best interests.
What if the other parent doesn’t comply with their obligations? What potential remedies are available to me?
Unfortunately, things may not always go to plan, and while, when it comes to children, it is best to avoid the court process wherever possible, sometimes it is inescapable and the only way to get things back on track.
If the other parent is not complying with their obligations, there are a variety of routes available to resolve issues.
Family mediation
Family mediation is a process in which an independent, professionally trained mediator assists the parties in reaching agreement on arrangements for children following separation. Family mediation may also be used if existing arrangements need to change, particularly as your child grows and develops, or there are other significant changes in circumstances to those existing at the time arrangements were originally agreed.
One of the benefits of mediation is that the mediator does not impose a binding decision on the parties; the role of the mediator is rather to encourage a constructive dialogue between the parties and to help them see each other’s perspective, so that they have a greater chance of reaching a child focussed solution that works for them both. The parties retain control in the solutions they reach.
The parties also have control in who they choose as their professional mediator, and arrangements for the mediation process (for example, the parties can decide whether they are likely to be able to engage in the process while being in the same space, or whether it would be more beneficial and productive for the parties to be in separate rooms, and for the mediator to move between them (known as “shuttle mediation”). If it appears to either of the parties at any stage that the process is not having the desired effect, they are free to walk away.
Other benefits of family mediation include:
- Less stress than the court process, which would involve laboriously following and adhering to various court directions, procedures, and formalities.
- Less acrimonious than the court process. Rather than co-parents being “pitted against each other” in the courtroom, mediation provides a safe, confidential space for each co-parent to express their wishes and concerns to the other, with an independent third party involved to ensure that communications are constructive and that the parties stay on track.
- Quicker than going to court, owing to the significant backlogs and delays the court is currently experiencing.
- Less cost compared to the court process, even if solicitors are instructed merely “in the background” of the mediation process.
Specific Issue Orders
A Specific Issue Order is an order granted by the court to resolve a specific disagreement or specific questions relating to the child. These orders are typically sought by separated parents who are unable to reach amicable agreements on decisions relating to their child’s upbringing and welfare.
A Specific Issue Order can address:
- Medical treatment, including blood transfusions
- Immunisation
- Education
- Circumcision
- Permission to take a child out of the jurisdiction for a holiday, where there is no Child Arrangements Order in force determining with whom the child is to live
- The return of a child in a non-Hague Convention abduction case
- Potential abduction where Specific Issue Orders have been made to prevent abduction, including for one parent to hold the children’s passports and travel documents, and authorising one parent not to inform the other of any change of home for the children in the next 12 months
- Disclosure to children of the natural father’s paternity
- Changing a child’s name in the absence of a Child Arrangements Order that determines with whom a child is to live
- Religious upbringing
Prohibited Steps Order
A Prohibited Steps Order (PSO) prevents any person from taking specified steps which could be taken by a parent in meeting their parental responsibility for a child, without the consent of the court.
A PSO can deal with a wide range of decisions relating to a child, such as:
- Preventing unauthorised contact with the child
- Prohibiting a parent from changing the child’s surname, where there is no Child Arrangements Order in force
- Decisions relating to religion, including prohibiting a parent from withdrawing the child from religious education at school or preventing the child’s religion being changed
- Education, including forbidding a parent from removing the child from a day nursery
- Preventing the removal of the child from the UK, where there is no Child Arrangements Order in force
- Prohibiting an internal relocation of the child by one parent
- Medical treatment of the child
Top tips
- Put your child first! The priority is to act in the best interests of your child, and it is important that you put aside any negative feelings you have about the other parent in making arrangements for your child.
- If you are faced with a decision to make with regards to your child, think about the type of decision you are making. Do you need to seek agreement on the decision from the other parent? Do you merely need to inform the other parent of the decision you are making? Do you need to inform them of the decision at all?
- If you are concerned about having arguments with the other parent, or if the other parent is not fulfilling their obligations, think about the ways in which you can manage the situation. Remember the court applies the “no-order” principle when it comes to child arrangements (i.e., the court will not make an order in respect of a child unless it considers that doing so would be in the best interests of the child). You should therefore try to consider out-of-court dispute resolution methods in the first instance if possible. There are however court-ordered remedies available if all out-of-court efforts fail or if there is an urgent need for action.
You may also find our other articles on related topics useful:
For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 105 or email us here.
Note: this blog is intended to give an overview (rather than comprehensive guidance and advice) on your legal or financial position and is provided for information only. It is not an endorsement of any product or service provider.