Unmarried Parents and Children Matters

Parental Responsibility for Unmarried Fathers

Parental responsibility means the legal rights and duties relating to a child's upbringing: a home, protection and maintenance, education, agreeing to medical treatment, and naming the child or agreeing to a change of name.

A birth mother has it automatically, as does a father who was married to, or the civil partner of, the mother when the child was born, under section 2(1) of the Children Act 1989. Where they were not married or civil partners at the time of the birth, section 2(2) gives parental responsibility to the mother alone, and the father has it only if he has acquired it under the Act. Where the parents marry or form a civil partnership after the birth the father normally acquires parental responsibility through legitimation. Legitimation is not automatic: under the Legitimacy Act 1976 it turns on the father's domicile when they marry, so take advice where he is domiciled outside England and Wales.

Section 4 gives him three routes: registration as the child's father, a parental responsibility agreement with the mother, or a court order on his application. Under section 12 the court must also make a parental responsibility order where it names a father in a child arrangements order as a person the child is to live with.

A woman who is the child's second legal parent under section 43 of the Human Fertilisation and Embryology Act 2008, which applies where the couple were not married or civil partners at the time of treatment and the treatment took place at a UK licensed clinic with the agreed female parenthood conditions met, has the same three routes under section 4ZA. A partner who does not meet those conditions is not the child's legal parent, so take advice. See parental responsibility for the wider rules and donor conception and legal parenthood for who counts as a parent after fertility treatment.

What Parental Responsibility Does and Does Not Allow

Parental responsibility is not a right to see your child: having it while you live apart does not give you a right to spend time with them, although the other parent must include you when making important decisions about their life.

Section 2(7) of the Children Act 1989 says that where more than one person has parental responsibility, each of them may act alone in meeting it, subject to any enactment that requires the consent of more than one person in a matter affecting the child. GOV.UK says consent is not always needed for a routine decision, but on a major decision everyone who has parental responsibility must agree in writing. Those rules bind only the people who hold parental responsibility: where the mother holds it alone and no court order says otherwise, the father's agreement is not legally required, though he may apply to the court.

Where someone else also holds parental responsibility, the big decisions are meant to be taken together, and acting alone over the other parent's objection invites an application to the court. Where a lives with child arrangements order is in force, section 13 of the Children Act 1989 requires the written consent of everyone with parental responsibility, or the court's leave, before the child is known by a new surname or taken out of the United Kingdom. For a change of school or significant medical treatment there is no equivalent statutory consent rule, so take advice before acting alone. Where you cannot agree, the court decides, on an application for a specific issue order or a prohibited steps order. Section 2(8) adds that parental responsibility never entitles you to act incompatibly with an order made about the child under the Children Act 1989.

Under section 1 of the Child Abduction Act 1984 it is an offence for a person connected with a child under 16 to take or send the child out of the United Kingdom without the leave of the court or the appropriate consent. That means the consent of the mother, of the father where he has parental responsibility, and of any guardian, special guardian or person named in a child arrangements order as someone the child is to live with. A father is a connected person whether or not he has parental responsibility. A person so named may go abroad with the child for less than a month, unless that would breach an order. See taking a child abroad, or international child relocation for a permanent move.

Financial support does not depend on parental responsibility: you have to ensure your child is supported financially whether you have it or not.

Arrangements and Money for the Children

Arrangements are decided the same way, married or not. The family court makes a child arrangements order under section 8 of the Children Act 1989, recording who the child lives with and spends time with. The child's welfare is the court's paramount consideration. A father is a parent, so section 10(4) entitles him to apply even without parental responsibility. Before applying for that order, for parental responsibility or for financial provision for a child, you normally have to attend a mediation information and assessment meeting, unless an exemption in rule 3.8 of the Family Procedure Rules applies.

Money for the children runs on two tracks. Child maintenance covers living costs where one parent does not live with the child. Both parents are responsible for the costs of raising their children even if they do not see them, and an arrangement is needed while the child is under 16, or under 20 if in approved education or training. You can agree it privately or use the Child Maintenance Service.

The second track is Schedule 1 to the Children Act 1989: a parent or certain other carers can ask the court for provision for the child: periodical payments, a lump sum, or the settlement or transfer of property for the child's benefit. It matters here because there is no equivalent of spousal maintenance between former cohabitants. While the Child Maintenance Service has jurisdiction, section 8 of the Child Support Act 1991 limits the court's power to order maintenance, though lump sums and property orders are not caught. See Schedule 1 Children Act claims and child maintenance advice.

Evidence and Common Problems

The commonest problem is a father not on the birth register. Unmarried parents can both appear on the certificate by signing the register together, or through a statutory declaration of parentage completed by one of them. Section 10A of the Births and Deaths Registration Act 1953 allows the father's details to be added later by re-registration: on a joint request, on one parent's request supported by a statutory declaration from the other, or on production of an agreement or a court order. Only the first two routes carry parental responsibility: section 4(1A) of the Children Act 1989 names paragraphs (a) to (c) of section 10A(1) alone.

Where parentage is denied, section 55A of the Family Law Act 1986 allows an application to the family court for a declaration of parentage, and the Child Maintenance Service can resolve parentage disagreements for maintenance purposes.

A parental responsibility agreement only works if it is made in the prescribed form and recorded in the prescribed manner, under section 4(2).

How the Process Works

1. Take advice on who holds parental responsibility and what is in dispute.
2. Ask the other parent to agree. If the mother agrees, complete a parental responsibility agreement, have it signed and witnessed at your local family court, then send the original, with the copies its notes list, to the court named on the form.
3. If there is no agreement, attend a mediation information and assessment meeting unless an exemption applies.
4. Apply to the family court. GOV.UK directs a standalone parental responsibility application to form C1, and a child arrangements, specific issue or prohibited steps application to form C100. A fee is payable: see GOV.UK court and tribunal fees and help with court fees.
5. Cafcass makes safeguarding checks before the first hearing, at which the court may approve what you have agreed or give directions.
6. Settle the money alongside the arrangements, and apply for re-registration where the father is to be added to the register.

When Legal Advice Is Especially Important

Take advice early where parentage is denied, where the mother will not agree to registration or an agreement, where one parent plans to move abroad or to a distant part of England and Wales, or where a change of the child's surname is proposed.

Where there are allegations of harm or of domestic abuse, the court applies Practice Direction 12J and may hold a fact-finding hearing before deciding arrangements. Protective orders are separate: see non-molestation orders. Where a parent's immigration position turns on their relationship with the child, family and private life under Article 8 is the starting point. If you are in immediate danger call 999, and the National Domestic Abuse Helpline is 0808 2000 247.

RakLAW does not offer legal aid and our family work is privately funded. Our charges are set out at family law fees.

How RakLAW Solicitors Can Help

We act for unmarried mothers and fathers: working out who holds parental responsibility, lodging an agreement where the other parent agrees, and applying to court where they do not. On money, we advise on child maintenance and whether a Schedule 1 application is realistic. On property, separation for unmarried couples and cohabitation agreements cover that side.

Our office is at 42 Shad Thames, London SE1 2YD, in Southwark, a short walk from Tower Bridge. The firm was founded by solicitor Rakesh Prajapati. We offer a free 15-minute consultation: book an appointment or call 0203 345 2000. RakLAW Solicitors is regulated by the Solicitors Regulation Authority, SRA number 8007405.