Parental responsibility (access and custody)
Encyclopedia
In the nations
of the European Union
and elsewhere, parental responsibility refers to the rights and privileges which underpin the relationship between a child
and either of the child's parent
s or those adults who have a significant role in the child's life. The terminology for this area of law
now includes matters dealt with as contact (visitation in the United States)
and residence (see Residence in English law
) in some states.
, issues relative to parental responsibilities are dealt with under the Children (Scotland) Act 1995, which provides for the making of 'residence' (custody), 'contact' (access), and 'specific issue' orders. These may be applied for by anyone with an interest in a child, not merely parents ( reference). Under section 1 of the 1995 Act, parental responsibilities are, where practicable and in the best interests of the child, to:
These responsibilities last until the child is aged 16, with the exception of the responsibility to provide the child with appropriate guidance, which lasts until the child is aged 18.
Under section 2 of the 1995 Act those with parental responsibilities are given corelative rights to allow them to fulfil those responsibilities. These rights are:
Having PRRs entitles a parent to take key decisions relating to the child, such as where they will live and go to school, and what medical treatment they should receive. In addition, parents have an obligation to provide financial support for their children under the Family Law (Scotland) Act 1985 (c 37) and the Child Support Act 1991 (c 38). In certain circumstances, this obligation continues when the child in question is beyond the age at which the parents have parental responsibilities under section 1 of the 1995 Act. The child’s mother (irrespective of whether she is married to the child’s father (s3(1)(a))) and the child’s father (but only if he is “married to the mother at the time of the child’s conception or subsequently” (s 3(1)(b))) have automatic rights. A married father’s PRRs continue after divorce, unless they are specifically removed by a court. Unmarried fathers, stepparents and others must either make a Section 4 Agreement, or apply to the court under section 11 for rights.
In line with Scottish Law Commission proposals in 1992, the Family Law (Scotland) Act 2006 has now brought Scots law in line with English law to the extent that an unmarried father will obtain parental rights and responsibilities if he is registered as the father on the birth register. It is thought that this position does not go far enough to take into account the rights of the father to be considered equally to the mother, and of the child, to have recognised both parents.
It should be noted that in current law, the right of parents to make decisions for their children and control them, including “choosing the child’s religion” is not absolute, but diminishes with the child's evolving maturity. As a general rule of law, except in situations that are regulated otherwise by statute, the right to make a decision on any particular matter concerning the child shifts from the parent to the child when the child reaches sufficient maturity to be capable of making up his or her own mind on the matter requiring decision (see the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL).).
Who has parental responsibility?
Mothers automatically have parental responsibility. If the parents are married at the time of the child’s birth then the father has automatic parental responsibility. For unmarried fathers the rules are more complicated. Being the biological father of a child does not mean that you have an automatic right in law to parental responsibility. Likewise, even though you may be registered as the father on your child’s birth certificate, this does not always mean that you have automatic parental responsibility.
If you are unmarried and separate from the child’s mother and you do not have parental responsibility, then you do not have a legal say in the child’s upbringing.
You do have parental responsibility if:
You do not have parental responsibility if:
Applying for parental responsibility
There are a number of ways of getting PR. These are:
To apply to the court for a PR order, a father needs to show a number of things:
Also, if PR is granted then it has to be exercised jointly with the mother of the child.
Country
A country is a region legally identified as a distinct entity in political geography. A country may be an independent sovereign state or one that is occupied by another state, as a non-sovereign or formerly sovereign political division, or a geographic region associated with a previously...
of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
and elsewhere, parental responsibility refers to the rights and privileges which underpin the relationship between a child
Child
Biologically, a child is generally a human between the stages of birth and puberty. Some vernacular definitions of a child include the fetus, as being an unborn child. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...
and either of the child's parent
Parent
A parent is a caretaker of the offspring in their own species. In humans, a parent is of a child . Children can have one or more parents, but they must have two biological parents. Biological parents consist of the male who sired the child and the female who gave birth to the child...
s or those adults who have a significant role in the child's life. The terminology for this area of law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
now includes matters dealt with as contact (visitation in the United States)
Contact (law)
In family law, contact is one of the general terms which denotes the level of contact a parent or other significant person in a child's life can have with that child...
and residence (see Residence in English law
Residence in English law
Residence in English law can refer to*Family law*Immigration law*Taxation law:See also*Residence in English family law....
) in some states.
Scotland
In Scots lawScots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
, issues relative to parental responsibilities are dealt with under the Children (Scotland) Act 1995, which provides for the making of 'residence' (custody), 'contact' (access), and 'specific issue' orders. These may be applied for by anyone with an interest in a child, not merely parents ( reference). Under section 1 of the 1995 Act, parental responsibilities are, where practicable and in the best interests of the child, to:
- safeguard and promote the child’s health, development and welfare;
- provide the child with appropriate direction and guidance;
- maintain personal relations and direct contact with the child;
- act as the child’s legal representative.
These responsibilities last until the child is aged 16, with the exception of the responsibility to provide the child with appropriate guidance, which lasts until the child is aged 18.
Under section 2 of the 1995 Act those with parental responsibilities are given corelative rights to allow them to fulfil those responsibilities. These rights are:
- to have the child living with him or her or otherwise to regulate the child’s residence;
- to appropriately control, direct or guide the child’s upbringing;
- if the child is not living with him or her, to maintain personal relations and contact with the child on a regular basis;
- to act as the child’s legal representative.
Having PRRs entitles a parent to take key decisions relating to the child, such as where they will live and go to school, and what medical treatment they should receive. In addition, parents have an obligation to provide financial support for their children under the Family Law (Scotland) Act 1985 (c 37) and the Child Support Act 1991 (c 38). In certain circumstances, this obligation continues when the child in question is beyond the age at which the parents have parental responsibilities under section 1 of the 1995 Act. The child’s mother (irrespective of whether she is married to the child’s father (s3(1)(a))) and the child’s father (but only if he is “married to the mother at the time of the child’s conception or subsequently” (s 3(1)(b))) have automatic rights. A married father’s PRRs continue after divorce, unless they are specifically removed by a court. Unmarried fathers, stepparents and others must either make a Section 4 Agreement, or apply to the court under section 11 for rights.
In line with Scottish Law Commission proposals in 1992, the Family Law (Scotland) Act 2006 has now brought Scots law in line with English law to the extent that an unmarried father will obtain parental rights and responsibilities if he is registered as the father on the birth register. It is thought that this position does not go far enough to take into account the rights of the father to be considered equally to the mother, and of the child, to have recognised both parents.
England
In English law Parental responsibility is a legal phrase used to define who has the rights and obligations in making decisions which affect the child’s life. Parental responsibility includes the following legal rights and responsibilities:- Providing a home for the child
- Having contact with and living with the child
- Protecting and maintaining the child
- Disciplining the child
- Choosing and providing for the child’s education
- Choosing the child’s religion
- Agreeing on the child’s health and medical care
- Consenting to medical treatment for the child
- Accessing the child’s medical and educational records
- Naming the child
- Responsibility for the child’s property
- Allowing confidential information about the child to be disclosed
It should be noted that in current law, the right of parents to make decisions for their children and control them, including “choosing the child’s religion” is not absolute, but diminishes with the child's evolving maturity. As a general rule of law, except in situations that are regulated otherwise by statute, the right to make a decision on any particular matter concerning the child shifts from the parent to the child when the child reaches sufficient maturity to be capable of making up his or her own mind on the matter requiring decision (see the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL).).
Who has parental responsibility?
Mothers automatically have parental responsibility. If the parents are married at the time of the child’s birth then the father has automatic parental responsibility. For unmarried fathers the rules are more complicated. Being the biological father of a child does not mean that you have an automatic right in law to parental responsibility. Likewise, even though you may be registered as the father on your child’s birth certificate, this does not always mean that you have automatic parental responsibility.
If you are unmarried and separate from the child’s mother and you do not have parental responsibility, then you do not have a legal say in the child’s upbringing.
You do have parental responsibility if:
- You are the father of a child born after 1st December 2003 and your name is on the birth certificate.
You do not have parental responsibility if:
- You are the father of a child born before 1st December 2003 and are not married to the child’s mother.
- You are the unmarried father of a child born after 1st December 2003 and you are not named on the child’s birth certificate.
Applying for parental responsibility
There are a number of ways of getting PR. These are:
- Entering into a voluntary parental responsibility agreement with the mother
- Marrying the mother
- Applying to the court to obtain a parental responsibility order
- Obtaining a residence order
- Being appointed as the child’s guardian
To apply to the court for a PR order, a father needs to show a number of things:
- The application is being made in the interests of the child’s welfare
- A degree of commitment to the child exists
- A degree of attachment between the child and father exists
- The father’s reason for applying for the order is genuine and well-meaning
Also, if PR is granted then it has to be exercised jointly with the mother of the child.
See also
- Shared parentingShared parentingShared parenting refers to a collaborative arrangement in child custody or divorce determinations in which the care of the children is equal or more than substantially shared between the biological parents.- Nature and History :...
- Parenting planParenting planA Parenting Plan or Custody Agreement is required by the district court along with divorce paperwork when parents divorce or separate. A Parenting Plan allows parents to avoid future conflicts arising from a lack of guidelines in dealing with responsibilities relating to the children...
- Childrens centre
- List of parenting issues affecting separated parents