By Nicole Francisco LLB

Parental responsibility (PR) is all the duties, authority and rights a parent has in relation to a child. A person with PR has the authority to make decisions for the child including those of which may concern education, accommodation and medical treatment. An individual who has PR over a child must make decisions which are beneficial to the child’s welfare and if they neglect this duty they could be held criminally liable.

Who has Parental responsibility?

The child’s biological mother always has PR over her child (s.2 Children’s Act 1989). A transgender man who gives birth to a child will be registered as the child’s mother on the birth certificate. This is because an acquired gender under S.12 of the Gender Recognition Act 2004 (GRA 2004) does not affect a person’s parental status.

A mother and father of whom are married or in a civil partnership when the child is born both are automatically granted PR (s.2(1) CA1989). If the spouses divorce, the father will continue to have PR. However, if the mother and father are unmarried at the time of birth the father can acquire PR through the following ways:

1. The father marries or enters a civil partnership with the mother. As a result of this the child will then be legitimized.
2. The father is registered on the register of births in the UK as the child’s father. This must be completed with the mother’s consent and the child must be born on or after December 2003.
3. Obtain a court order granting him PR.
4. He can enter a PR agreement with the mother and files it at the Central Family Court (CFC) and;
5. Seek a Child Arrangements Order (CAO) on which he would either be named as the person the child lives with or spends time with and has contact with. When the court orders a CAO naming the father as someone the child lives with they must also grant PR. When the court orders a CAO naming the father as someone the child spends time or has contact with, it is likely they would find it appropriate to make a PR order in his favor.

Other people who are able to obtain PR through court orders and other agreements include: step parents; Guardians; same sex couples; Surrogacy parents and adopters. For the purpose of this article, we will concentrate on the unmarried mother and father.

Case Study:

The client was in a relationship with his ex-partner for approximately 8 months, they were unmarried. He was informed of her pregnancy, 3 weeks before her due date and has no reservation to if he is the father or not and yet he was not named on the birth certificate as the father. He stated he has been forthcoming with the pregnancy and has shown his commitment to the child by sending money, clothes, gifts and attending the child’s birth even without being able to enter the hospital due to COVID-19 restrictions. The client advised that any money and gifts were refused and returned by his ex-partner and her family. The client and his family have made multiple advances to have contact with the child, particularly his mother but his ex-partner makes last minute cancellations. The current child arrangement, reached through mediation, is that he has contact with his daughter fortnightly, on Sundays for 2 hours in a local coffee shop whilst supervised by the child’s maternal grandmother. He feels like this arrangement is unsatisfactory due to the setting and the feeling of tension he receives from the maternal grandmother. He is also unclear as to why he was not named on the birth certificate as the child’s father as the reasons the mother gave are contradicting to what he has knowledge of.

The client has expressed that he is open-minded to any arrangement to which allows him to spend more time with his daughter in a comfortable setting, including his family home or his ex-partners family home. Ideally, he would like to spend the day with her at his residence and returning her to her mother on the same day. He has family prepared to provide transport and is willing to agree with the mother on days and times which will be suitable. The client is currently unemployed and seeking work, he has not explored Universal credit as he would prefer to acquire a job and is awaiting a response from a job opportunity.

The desired position of the client is that he is named on her Birth Certificate and receives PR. He also would like a CAO for his daughter to allow him to spend time with her unsupervised. He desires to build a bond with his daughter by increasing the time currently agreed upon to a more frequent basis, so he can assist with the co-parenting of his daughter. Gradually, at the pace of his daughter, he would like to transition to overnight stays. He believes it is important that his daughter has a relationship with her father and acknowledges that his daughter is still reliant on her mother but wishes she is able to also have a bond with her extended family.

Is this client likely to be granted PR by the court?

Yes. The client should continue with his current arrangement until a more beneficial one can be agreed upon. The possibility of a contact centre should be considered as a better short term arrangement, if he wanted to achieve unsupervised contact away from his ex-partners family and she is still not consenting to unsupervised contact. Thus, providing evidence of continuous commitment towards the child’s welfare and relationship with himself. The client should also request a copy of the birth certificate. This would need to be obtained for the hearing. This is so there is evidence of him not being named as the father and clarification as to why this is would be provided at court. As a result, re-registry of the child’s birth and amending the of the birth certificate to include the clients name would enable him to have PR over his daughter.

Written by Nicole Francisco, Legal assistant at Brady Harvey Legal. She holds an LLB Degree from University of Hertfordshire and is completing her LLM LPC, also at the University of Hertfordshire.