Children Act 1989 s2 (1)
Where a child’s father and mother were married to each other at the time of his birth shall each have parental responsibility of the child.
Extended to include parties who are clearly not as a matter of fact, married at time of birth.
Parents who are in void marriage fall within this section provided that at the time of conception, or at the time of marriage if later, they believed that the marriage was valid. Reasonable belief is presumed until contrary is proven.
Also applies to parents who marry after birth, father acquires PR from date of marriage.
Also applies for child’s mother and female parent who acquire legal parenthood pursuant to s42/43 of HFEA.
In the case of unmarried parents
S2 (2) provides
Where a child’s father and mother were not married to each other at the time of his birth—
(a) The mother shall have parental responsibility for the child;
(b) The father shall have parental responsibility for the child if he has acquired it in accordance with the provisions of this Act.
**Combined effect of 2(1) and (2) is that mothers always have PR, as do fathers who are married to the mother. But the unmarried father of the child does not automatically obtain PR.
Law Commission: recommended that unmarried father should be entitled to seek a court order conferring parental rights and duties.
S4 FLRA 1987, enabled unmarried father to obtain similar status similar to married father
Essence was re-enacted in s4 CA 1989, order is known as “PR Order”
Further strengthened unmarried father’s position with another mechanism, formal agreement between mother and father “PR Agreement”
Late 1990, Lord chancellor’s department. Sympathetic towards unmarried fathers “increasingly seen as unacceptable, in view that large numbers of children who are born to unmarried parents many of whom are born in stable r/s.”
Consultation paper commented that it was ‘clearly impossible to assume that most unmarried fathers are irresponsible/uninterested in their children, and do not deserve legal role as parents.’
Following this, new provision inserted in s4 of CA 1989, conferring PR on a father through joint registration of the father’s name on the child’s birth cert
Some have criticised this, says that it pits the onus on women to apply to revoke PR where problems arise and for doing ‘little to enhance and promote relationships between children and fathers in any practical way.’
Children Act 1989 s 3(1):
"'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.'
All mothers have legal PH from biological connection, and also have PR
But some parents, such as an unmarried man, will not have all this
Law distinguished on gender, marriage
PR is otherwise undefined in statute. Found in the common law or individual statutory provisions.
Cf Children (Scotland) Act 1995, ss 1(1) and 2(1)
If you have a duty as parent, the fact that you don’t have PR doesn’t affect the duties that arise from your legal parenthood. Some duties will be attached to LP, some to PR.
J. Eekelaar, ‘Rethinking parental responsibility’ [2001] Fam Law 426 reflected on complexity between LP and PR. Identified that in some cases to have a duty to a child, one need only be a parent of a child (parenthood). Such as the duty to support a child that is attributed to LP and not PR. Duty to cause a child to be educated duty imposed to both LP and PR.
In some cases, you have to be a parent and have parental responsibility, ie adoption.
J. Eekelaar, 'Parental Responsibility: State of Nature or Nature of the State?' [1991] JSWFL 37
PR is used in reference of responsibility towards the child. Can also mean accountability, meaning parents can be responsible for child’s criminal acts.
Has been changed from rights to responsibility
More focus on the responsibility owed to the child, not on rights given to parent
