We are not married, does this mean mum gets the children?
In short and generally speaking the answer to this question is yes, unless there is a court order in place stating otherwise, or the father is registered on the child’s birth certificate.
On the birth of a child it is only the mother that has automatic legal parental responsibility for the child. This very strict legal approach does not fit with the overall structure of families in the modern day and more and more children are living with unmarried cohabiting parent’s or are born into families where the parents are not in a relationship, and in such situations it could be assumed that a father’s parental rights are reasonably straight-forward, certainly the media would have us think this with the continuing encouragement given for fathers to take on more responsibility for their children, but this is of course encouraged on the basis that the relationship between mum and dad is a positive one.
What is Parental Responsibility?
Parental responsibility is defined as all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and its property.
This includes all fundamental decisions as to what the child does presently and in the future, for example; where the child goes to school, what medical treatment the child can or cannot receive and what religion the child should follow, in addition parents who have legal responsibility also have the power to make decisions on whether the child goes on a particular outing, what the child does for recreation, and it can even come down to what food the child eats. Until parental responsibility for the father is established they have no legal rights whatsoever to make such decisions.
How do I know if I have parental responsibility?
Unmarried fathers with children born (or whose birth is registered) after 1st December 2003 and whose name appears on the birth certificate have parental rights and responsibilities. But fathers who fall outside this criteria may be in for a shock.
Cohabiting couples can live many years together with their children and it is only when the relationship comes to an end that a father can realise he actually has no legal rights at all over his children leaving him a vulnerable position.
How can you acquire parental responsibility?
All is not lost for a father who does not have the automatic right to parental responsibility, it can be obtained by one of the following six ways:
- Being registered on the birth certificate with the consent of the mother.
Entering into a ‘parental responsibility agreement with the mother. The agreement must be in a prescribed form, signed and witnessed by a court official.
Application to the court for parental responsibility, this is usual in cases where the mother of the child is refusing to allow the father to have such responsibility. When making a parental responsibility order the court will use the welfare principle, they will look at the father’s degree of commitment to the child, the state of the father’s current relationship with the child, and his reasons for making the application.
Being appointed as a guardian either by the mother or the court, although in these cases the father will only assume parental responsibility on the mother’s death.
- By obtaining a Child Arrangements Order from the court. This order may be the best approach when a father wants the children to live with him. When the court consider making such an order the child’s welfare is their main concern, and they make reference to the Child Welfare Checklist as a general guide.
- By marrying the mother.
I do not have parental responsibility, am I required to pay child maintenance?
If a father does not have parental responsibility he is still required by law to financially support his child. Paying maintenance does not give a biological father parental responsibility or entitle him to have it.
The issues relating to parental responsibility and the rights of a parent can be long and complex. The law and court practice procedure can be difficult and it would be advised that where a person is confused about the rights they have as a parent they should seek family law advice from a solicitor.
Jessica Wilson is a Paralegal at Maguire Family Law, a specialist family law practice in Cheshire. If you do need any family law advice from a specialist, experienced and recommended family solicitor please email: Jessica.firstname.lastname@example.org or telephone:
Wilmslow 01625 544650
Knutsford 01565 648 228
London 0207 947 4219