Children’s orders

Parental responsibility

What is parental responsibility?

The concept of Parental Responsibility can often cause some confusion amongst parents, particularly if there is a dispute as to whether an unmarried father should be granted Parental Responsibility in respect of the child or not.

It’s important to understand that the concept does not deal with rights over a child, but more so the responsibility that a parent has for the child. Parental Responsibility encompasses the right to make important decisions about a child’s life, for example, a child’s education, religion, health care, where the child should live etc. Parental Responsibility is not to be confused with the day to day running of a child’s life, nor should it be seen as a method to control the other parent’s parenting abilities over the child.

Who has parental responsibility?

A mother will automatically have Parental Responsibility of their child. A father who is married at the time of the child’s birth to the mother will automatically have Parental Responsibility, this also extends to children who are legitimated by their parent’s marriage, after their birth.

The law now extends to unmarried fathers, who will automatically have Parental Responsibility of the child, provided their name appears on the child’s birth certificate and the child is born after 02 December 2016. For any child born prior to this date, the law is not retrospective for unmarried fathers so it’s important to establish this point first and foremost if you find yourself in a PR dispute with your child’s mother/father.

How can parental responsibility be obtained if it’s not automatically applied?

Where matters are agreed that the unmarried father should have Parental Responsibility of the child, a Parental Responsibility agreement needs to be completed by both parents, witnessed and filed with the Court.

However, if there is a dispute, the unmarried father of the child will need to apply for an order from the Court for Parental Responsibility in respect of a child, a Form C100 will need to be filed with Court.

If the latter is the case, the Court will usually determine the matter of Parental Responsibility by having regard to the three-strand test:

• Degree of commitment which the father has shown towards the child
• Degree of attachments which exists between the father and the child
• Reasons for the father applying for the order

Due to the amendment to the law in 2016, the threshold for acquiring Parental Responsibility is considered to be low, however, if there are cogent reasons as to why it should not be granted the Court is able deny the father’s application.

Article 10 orders

These are one of 5 orders available that the Court can make when a Form C100 application is filed by a parent.

Residence orders

The above order sets out arrangements for where the child should live, and in this instance will be made in favour of one parent.

It is possible for more than one person to have residence of a child, and this is order is known as ‘shared residence’. The order will usually specify the days in which the child will live between the two different households, and may even include details of how the child should move between the two homes. It is important to note that with this type of order, the child’s time between the households does not necessarily need to be split equally. The main point of this type of order, is that it reflects the reality of where the child lives their life.

Contact orders

This order requires the person who has residence of the child (the resident parent) to ‘free up’ the child for contact with the other parent (non-resident parent) (or person named in the order). Contact can include both day contact and staying contact. The order will usually specify the days in which the child is to have contact with the non-resident parent, and may even specify how handovers for the child should take place.

As the welfare of any child is of paramount consideration for the Court, the view on contact almost always is that it is in the interests of the child (whose parents have separated) that he or she should have contact with the parent that they do not primarily live with.

In exceptional circumstances where direct contact is not believed to be in a child’s best interests, indirect contact will be considered and is likely to be highly desirable in such circumstances.

Prohibited steps orders (PSO)

The above order if granted, will prevent an action which could be taken by a parent in meeting their Parental Responsibility for a child. Examples of this order include; i) preventing a parent from removing the child from the jurisdiction and ii) preventing a parent from removing a child from their current school/ changing the child’s current place of school. However, a Prohibited Steps Order does not necessarily have to be made in conjunction with some form of parental activity.

Specific issue orders (SIO)

This type of order, if granted, can deal with a specific issue which may arise in connection with a parent’s Parental Responsibility over a child. Examples of where orders can be granted relate to religion, name change of a child or medical treatment.

Cases where Specific Issue Orders were discussed are in respect of disputes relating to circumcision of a child for religious reasons, or disputes arising between parents for issues concerning the immunisation of a child.

General points to remember

Welfare principle and checklist

The child’s welfare is of paramount consideration, the Court will have regard to the welfare checklist when making determinations about a child’s life.

Delay

Delays should be avoided as this can be harmful to a case and more importantly to the child and the relationship they have with their parent(s), particularly in cases where contact has been unilaterally terminated by one parent. Delays can be perceived as beneficial, if it’s thought to have some positive impact to the case, or the delay is proactive for the purpose of achieving good, i.e. allowing time for some form of counselling, or use of experts.

Non-intervention rule

The Court will not be required to make an order unless it considers that doing so would be better for the child than making no order at all.