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Parental rights and responsibilities

What is parental responsibility?

'Parental responsibility' includes rights that many people take for granted simply by virtue of being a parent - mainly, the right to make decisions about a child's upbringing.

The law defines parental responsibility 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".

What are examples of parental responsibility?

Parental responsibility has an impact on a wide variety of decision-making including:

  • education
  • medical treatment
  • religious upbringing
  • international travel.

However, parental responsibility is separate and distinct from decisions about where a child lives (this is known as 'residence') and whom the child sees ('contact').

Although parental responsibility gives parents certain rights, these rights are not unfettered. The parents have an overarching obligation to exercise their rights for the benefit of the child concerned.

In the event of a dispute regarding how parental responsibility should be exercised, the court will ultimately select the outcome that best meets the child's needs.

Who has parental responsibility?

A woman who gives birth to a child automatically has parental responsibility.

Ordinarily, this woman is the child's mother, but this is not always the case - as in, for example, some surrogacy arrangements.

A father automatically has parental responsibility if:

a) he was married to the mother at the time the child was born

b) he marries the mother following the child's birth.

However, a father who is not married to the mother will only have automatic parental responsibility if the child was born after December 2003 and his name is installed on the child's birth certificate.

How to obtain parental responsibility?

An unmarried father who does not have automatic parental responsibility can obtain it in three ways:

a) Enter into and register a 'parental responsibility agreement' with the child's mother

b) Obtain a 'parental responsibility order'  from the court

c) Obtain a 'residence order' from the court.

In deciding an unmarried father's application for parental responsibility, the court will consider the following factors:

  • the father's demonstrated commitment to the child
  • the attachment between the father and the child
  • the father's stated reasons for applying for parental responsibility.

As with all decisions pertaining to parental responsibility, the court will reach a decision based on what it believes is in the best interests of the child.

Can anyone other than a child's parents or step-parents obtain parental responsibility?

There are also circumstances when persons other than a child's parents or step-parents might want to acquire parental responsibility. For instance, if a child was raised in a kinship care situation where a grandparent, uncle or aunt provides daily care.

These persons can obtain parental responsibility from the court - either a residence order or 'special guardianship order'. In this instance, the parental responsibility conferred only lasts for the duration of the order granted.

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