Making decisions about the care, upbringing and wellbeing of a child usually rests with his or her parents. However, ‘parental responsibility’ (PR) gives a person the right to make these decisions regardless of whether the child is related to them or lives with them.
It’s a very important aspect of law and one of the first questions lawyers will ask is “Do you have PR?”, before they can address any potential issues.
Mothers automatically have parental responsibility but for others there are a number of ways to obtain PR, including:
- Being named as a parent on the child’s birth certificate
- Being married to the mother when the child is born or at the time of the fertility treatment
- Marrying the mother after the child is born
- By entering into a Parental Responsibility Agreement
- Obtaining a Parental Responsibility Order
- Obtaining a Parental Order in the case of surrogacy
- Being named as the person with whom the child lives in a Child Arrangements Order
- Being appointed as a child’s guardian, including by way of Will, known as a testamentary guardian
The last example above is an often-overlooked way of acquiring PR. This was brought to the media’s attention earlier this year when sadly a mother died leaving a young daughter. The girl’s parents were separated and the mother had a Child Arrangements Order in her favour which stated that her daughter lived with her and had contact with her father. This was important as it meant that the mother, who had the benefit of the court order, could appoint testamentary guardians in her Will to look after her daughter. When the mother died, the guardians automatically acquired PR alongside the father.
In that case, the father asked the court to make an order that his daughter should live with him rather than the guardians. Historically, the court would favour the father as the biological parent over the guardians. However in this case, the Court of Appeal decided that this assumption is wrong and that it is not always in the best interests of the child to take this approach. The final order of the court was that the guardians should have care of the child as they were her ‘psychological parents’.
An important decision
There are a number of reasons why this case is important: it highlights that a person who has a court order stating that a child lives with them has the right to appoint testamentary guardians in their Will and that the court will not necessarily favour a biological parent. The circumstances above could easily apply where there is a step-parent appointed as a guardian, or grandparents, or where there is an absent parent for whatever reason.
The appointment of a guardian in a Will is an essential consideration, especially if your family circumstances differ from the traditional model. It is important also to remember the significance of PR and to consider whether all parents, be they biological, gestational or psychological, have PR.
We always recommend that people contact a family solicitor if they have questions about PR or think that their circumstances mean they need to consider granting PR to another person who does not automatically have it.
The Lester Aldridge family team deal with these issues on a daily basis.
If you would like to discuss any aspect of divorce, separation, arrangements for your children or wish to protect your assets prior to getting married, contact the family team on 01202 786161 or email firstname.lastname@example.org.