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Parental responsibility- Maintenance claims
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Parental responsibility - England and Wales
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1. What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?
Parental responsibility means 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. This refers to any obligation which he may have in relation to a child (such as the duty to maintain) and any rights which, in the event of the child's death, he may have in relation to the child's property.
2. As a general rule, who has the parental responsibility over a child?
If the parents of a child are married, they will both have parental responsibility. Unmarried mothers have parental responsibility and unmarried fathers can acquire it either by agreement with the mother or by court order. From 1 December 2003 unmarried fathers will obtain parental responsibility for their child if they register the birth jointly with the child's mother. A person who has a residence order in respect of a child has parental responsibility for the duration of the order. The making of an adoption order confers parental responsibility without limit of time, unless it is revoked. Guardians (see question 3 below) have parental responsibility for the duration of the order. A local government authority has parental responsibility for a child if the child is the subject of a care order.
3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?
A guardian may be appointed by the court to exercise parental responsibility if the parents are unable to take care of a child. A parent with parental responsibility may appoint a person to be the child's guardian in the event of the parent's death.
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4. If the parents divorce or split up, how is the question of parental responsibility determined for the future?
If married parents divorce, they both retain parental responsibility unless it is specifically revoked by a court. If an unmarried couple separate, the mother will retain parental responsibility and the father will retain it, if he has it already, or acquire it by agreement or court order.
5. If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?
The agreement must be made in the form prescribed by regulations. Members of the public can get a Parental Responsibility Agreement form from their local family proceedings court, county court or the Principal Registry of the Family Division. Details of the addresses of courts can be found on the Court Service website at: www.courtservice.gov.uk/cms/courtaddresses.htm. The form is accompanied by notes for guidance. As the making of the agreement will seriously affect the legal position of both parents, they are both advised to seek legal advice before completing the form. They can obtain the name and address of a solicitor from the Children Panel (00 44 20 7242 1222) or from:
- their local family proceedings court or county court
- a Citizens Advice Bureau
- a Law Centre
- a local library.
They may also be eligible for legal aid.
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The parents must provide evidence of identity and their signatures must be witnessed by an authorised officer of the court. The mother should take with her to the court proof that she is the child's mother, so a copy of the child's full birth certificate will be needed. She will also need to take proof of her identity, showing a photograph and signature (for example, a photocard, official pass or passport). Alternatively, the court will also accept a driving licence, bankers/credit cards or Income Support/Child Benefit book. The father only need take proof of his identity, showing a photograph and signature (for example, a photocard, official pass or passport). Alternatively, the court will also accept a driving licence, bankers/credit cards or Income Support/Child Benefit book.
When the form has been signed and witnessed 2 copies should be made. The original Agreement form and the copies can be taken or sent to
The Principal Registry of the Family Division,
First Avenue House,
42-49 High Holborn,
London WC1V 6NP.
The Registry will record the Agreement and keep the original. The copies will be stamped and sent back to each parent at the address on the Agreement. The Agreement will not take effect until it has been received and recorded at the Principal Registry of the Family Division.
There is no fee for registering a Parental Responsibility Agreement. If there is more than one child in question, a separate form should be completed for each child.
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6. If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?
Mediation services are available to help parents reach a satisfactory arrangement for the future parenting of the child. Any agreement reached must be registered with the court. Registration is needed to validate the agreement and to make the agreement enforceable.
More information on family mediation can be found on the website of the Department for Constitutional Affairs.
7. If the parents go to court, what issues can the judge decide upon relating to the child?
The judge can decide on the residence of the child. If the child is to reside with one parent, the judge can decide the contact arrangements with the non-resident parent and/or wider family, although parents are encouraged to reach agreement on contact, even if the decision on residence has to be decided by the court. Courts will not decide maintenance payments for children as this is undertaken by the Child Support Agency. Parents usually agree what school the child will attend; this can be decided by the judge making a specific issue order if agreement cannot be reached. A child retains its own name unless directed otherwise by the court. The court can also prevent a party exercising part of their parental responsibility, by making a prohibited steps order. The court can also decide on permanent removal from the jurisdiction and change of surname (see question 8 below).
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8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?
The court expects parents to take decisions together by agreement. If both parents have parental responsibility, the parent with a residence order must have the consent of the non-resident parent (and anyone else with parental responsibility) to remove the child permanently from the United Kingdom or have the permission of the court. The resident parent can move within the jurisdiction (England & Wales). The consent of everyone with parental responsibility, or the permission of the court, is required for the child's surname to be changed.
9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice?
Parents will share residence. The child will spend part of their time with each as ordered by the court. There may be practical effects on the amount of child maintenance payable.
10. To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?
Application can be made to either a magistrates' court or the county court under s4 of the Children Act 1989. Details of your local court are in the telephone directory or available from the public library or the Court Service website at: www.courtservice.gov.uk/cms/courtaddresses.htm. The court will provide a copy of the form. Every person with parental responsibility must be sent a copy of the application form. Documents will be filed later, as directed by the court.
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11. Which procedure applies in these cases? Is an emergency procedure available?
The procedure is as detailed above. There are no emergency procedures for obtaining parental responsibility.
12. Can I obtain legal aid to cover the costs of the procedure?
Legal aid is available subject to the usual means and merits tests (see “Legal Aid - United Kingdomâ€�).
13. Is it possible to appeal against a decision on parental responsibility?
Yes. Decisions on parental responsibility made in a magistrates' court can be appealed in a county court. Appeals from decisions in the county court are heard in the High Court.
14. In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies?
Parental responsibility is a right and cannot of itself be enforced. Failure to exercise parental responsibility can be dealt with by application to either a magistrates' court or county court to address the specific issue in dispute, such as the obligation to maintain the child. Details of the addresses of courts can be found on the Court Service website.
15. What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in England and Wales?
If you wish to enforce an order from another Member State under EC Regulation No 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (commonly known as the Brussels II Regulation), you should obtain the documents required under Articles 32 and 33 of the EC Regulation from the court which made the order and submit them to the High Court in England & Wales. You will find it helpful to get legal advice on this matter. If the order concerning the child was not made in matrimonial proceedings in the other Member State, or the child is not the child of both spouses, different procedures apply. Application should be made to a magistrates' or county court.
16. To which court should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?
You would have to oppose the making of the order in the court of the originating jurisdiction before the order is made. If the law of that State so provides, anyone with an interest in the case should be informed that the court is hearing an application for an order. The law of that Member State will say what action you can take to oppose the order being made.
17. Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in England and Wales or are of different nationality?
The proceedings must be brought in the court in the jurisdiction where the child is habitually resident.
Further information
- Information on family matters and court practices on the website of the Department for Constitutional Affairs.
- Information on the Child Support Agency, which deals with maintenance payments.
This also includes information on the procedures for Reciprocal Enforcement of Maintenance Orders.
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Last update: 03-08-2007
