What is parental responsibility and why is it important?

Parental responsibility is a legal term which many parents haven’t even heard of until they face a separation. It relates more to the legal duties of a parent towards a child than their rights over them, though these are covered by the definition too.

Mothers automatically have parental responsibility for a child from birth. Fathers acquire it automatically if they are either:

• married to/in a civil partnership with the mother at the time of birth (whether or not they are the natural father)
• named on the child’s birth certificate
• entering into a voluntary parental responsibility agreement with the birth mother.

In cases of dispute, the family court can award responsibility to a birth parent or a non-birth parent/primary carer – for instance, in cases where a child lives with relatives or is adopted.

For same-sex couples, there are various ways in which you can have a child together. Whilst the birth mother has responsibility automatically (unless her parental status is removed by a parental order following surrogacy or adoption), responsibility for the other legal parent depends on the circumstances of conception, the marital or civil partnership status at the time and any steps that have been taken after the birth to formalise their legal status.

Having parental responsibility means that you are legally recognised as the child’s parent or custodian, and so you have the legal authority to make important decisions about that child’s life. This can include giving consent for medical treatments, choosing which school the child goes to, changing their name and appointing a legal guardian to care for them in the event of your death.

Appointing a guardian in your will – why should you do this and when will it take effect?

Appointing a guardian in your will gives you peace of mind that, if you and the other parent die before the child reaches the age of 18, people that you trust and have specifically chosen will take care of your child.

If you fail to appoint a guardian for your child and both you and your child’s other parent pass away whilst your child is under 18 – and if no other family member steps in voluntarily to assist – then the court may make an order appointing a guardian, and this may not be someone that you would have entrusted yourself.

On the death of a parent, a person appointed in a will as a ‘testamentary guardian’ will automatically obtain parental responsibility for the child if there is no other surviving parent or person with parental responsibility.

If there is a surviving person with parental responsibility who for some legitimate reason is not fit to parent – or who hasn’t been involved in the child’s life, so is unknown to them –  then a testamentary guardian will have legal status to apply to the court for the child to live with them.

Why is appointing a testamentary guardian especially important for separated parents?

In normal circumstances where separated parents are successfully sharing the care of their children between them, your ex-partner would be expected to assume full-time care of your child in the event of your death.

However, in some cases a child may not have a continued, meaningful relationship with their other parent, or there may be welfare concerns which could have caused the adult relationship to break down in the first place. Alternatively, the other person/s with parental responsibility may have already died.

For whatever reason, if you think that someone else, such as a close family member or friend, would be better placed to look after your child than another parent or likely carer, then you should make your wishes known by naming your proposed carer as a guardian in your will.

You should ensure that the person you have chosen is aware of your wish and prepared to take on the role if needed, especially if they are likely to be met with a challenge by the other parent.

As mentioned earlier, the guardian appointment will not take effect immediately if you are outlived by another parent with parental responsibility. The elected person, however, can apply to the family court for the child to live with them in preference to the other parent. A decision will then be made by the court in accordance with the child’s best interests.

By naming a guardian in your will, you will have done the best for your child by formally expressing your wishes as to who should care for them on your death in the absence or inability of your ex-partner to parent, something which is often overlooked by parents who believe that making a will relates solely to the distribution of things like money and property.

If you would like to get in touch with our family law team regarding child arrangements, or would like to appoint a guardian, please don’t hesitate to contact us.

Our Legal 500 and Chambers-rated department can help with all aspects of family law. Our lawyers listen to your needs sensitively and fairly, providing clear, supportive and careful guidance to deliver the best outcome for you.