What are parental rights ?

‘Parental rights’ is a term in common usage, but it relates to what is probably one of the most common misunderstandings in the area of family law’

Because there is in a sense no such thing as ‘parental rights’, at least so far as the law in England and Wales is concerned.

That may come as a surprise to many. Surely, parents have rights over their children, don’t they?

Well, not exactly.

Exploring the key legislation concerning children helps to explain this concept. We are referring to the Children Act 1989.

Parental responsibilities not rights

Prior to the passing of the Children Act the idea of parental rights was in fact central to family law in England and Wales, with terms such as “parental rights and duties”, the “powers and duties” of a parent, and the “rights and authority”” of a parent featuring in various statutes.

The creators of the Children Act recognized the inaccuracy and misguidance in referring to ‘parental rights’. The powers which parents have to control or make decisions for their children are simply part of their parental responsibilities. To refer to the concept of “right” in the relationship between parent and child is therefore likely to produce confusion.

Accordingly it was decided to replace the idea of ‘parental rights’ with the new concept of ‘parental responsibilities’. The term was considered to mirror the daily reality of parenting, highlighting the responsibilities of those in that role.

One further advantage of this change was that the same concept could then be employed to define the status of local authorities when children have been committed to their care. This emphasizes the ongoing parental responsibility of the local authority, even when the child resides at home.

Returning to the post’s subject, the relevant question is not ‘what are parental rights?’ but ‘what is parental responsibility?

What is parental responsibility?

Somewhat confusingly, the Children Act defines ‘parental responsibility’ as “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 definition is confusing both because it still includes the word “rights”, which seems to contradict the idea of ‘parental responsibility’, and because it doesn’t actually state what the rights, duties, powers, and responsibilities are.

It was in fact a positive decision not to state what the responsibilities of a parent are. For one thing it would be difficult if not impossible to list all parental responsibilities, and for another parental responsibilities can change to meet different needs and circumstances, for example the age and maturity of the child.

However, we can give a few examples of parental responsibilities.

Maintaining the child is a responsibility that persists even when the child no longer lives with the parent.

Another responsibility is to ensure that the child is educated, whether at school or at home.

And another responsibility is to ensure that the child receives appropriate medical treatment.

Additionally, parents generally bear responsibilities in the child’s overall upbringing, including decisions on religious matters, if applicable. This responsibility can evolve as the child matures, gaining more influence in decisions related to these matters.

Who has parental responsibility?

Of course, these responsibilities can only be exercised by a parent with parental responsibility, so who has parental responsibility?

Parental responsibility, in this context, pertains specifically to parents, although it can be held by non-parents as well.

All mothers acquire parental responsibility automatically, as do fathers if they are married to the mother. Mothers and married fathers can only lose parental responsibility if the child is adopted.

Unmarried fathers can acquire parental responsibility if they are named as the father on the child’s birth certificate, if the mother agrees to them having parental responsibility (and a parental responsibility agreement is signed), or by a court order granting them parental responsibility. An unmarried father can lose parental responsibility either by the child being adopted or by a court order removing parental responsibility.

In summary, ‘parental responsibilities’ encompass all legal duties held by a person with parental responsibility towards the child.

How can we help?

For further information on how we can help, please see our Child Law pages.

Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.

Please contact us if you require any further information.