In England and Wales, a parent’s decision-making power is defined 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” (Section 3(1) of the Children Act 1989). This authority is known as “parental responsibility” and empowers a person to make decisions in relation to, among other things, a child’s education and healthcare.

Parental responsibility is acquired automatically by a child’s birth mother in England and Wales.

A father’s parental responsibility in England and Wales will depend on their relationship to the child’s mother at the time of birth.

Parental responsibility is acquired automatically by a child’s father if they are:

• married to the child’s mother; or

• a civil partner of the child’s mother at the time of birth (from 2 December 2019).

Alternatively, parental responsibility can be acquired by unmarried fathers in the following ways:

• by subsequently marrying or, from 2 December 2019, becoming a civil partner of the child’s mother;
• by being registered as the child’s father on their birth certificate on or after 1 December 2003;
• by entering into a parental responsibility agreement with the child’s mother;
• by obtaining a parental responsibility order from the court so long as the child is under 18; and
• by being formally appointed as the child’s guardian by the mother or by the court.

If the father is named as the parent with whom the child is to live, a parental responsibility order must be made. However, if the father is named as someone with whom the child is merely to spend time, such an order need only be considered.

There are various categories of non-genetic parents in England and Wales and the route to parental responsibility is different within each category.

Adoption

The making of an adoption order pursuant to the Adoption and Children Act 2002 will automatically confer parental responsibility on the adopting parent. Any existing parental responsibility held by another parent will be extinguished upon the making of an adoption order, unless the adopting parent is a step-parent of the adopted child.

Step-Parents

Prior to 30 December 2005, step-parents who wished to acquire parental responsibility for their step-children would be required to formally adopt them. This changed with the introduction of the Adoption and Children Act 2002. Step-parents are now also able to acquire parental responsibility by:

• entering into a parental responsibility agreement with the child’s mother and father (if both have parental responsibility) or with the child’s mother (if only she has parental responsibility); or
• applying to court for a parental responsibility order.

In some cases, a step-parent may also acquire parental responsibility by being formally appointed as the child’s special guardian.

Same-Sex Female Relationships

The following provisions apply to a child or children conceived after 6 April 2009.

Pursuant to Section 42 and Section 43 of the Human Fertilisation and Embryology Act 2008 parental responsibility is acquired automatically by the other parent at the time of birth if, at the time of the placing in the mother of the embryo or the sperm and eggs or of her artificial insemination, the other parent is:

• married to the child’s mother;
• a civil partner of the child’s mother at the time of birth; or
• there is agreement from the child’s mother that the other parent shall be treated as such, provided the criteria in Section 43 are met.

Note that the first two points will not apply if the other parent does not consent.

The further criteria of Section 43 of the Human Fertilisation and Embryology Act 2008 are as follows. Subject to Section 45(2–4), the other woman is to be treated as a parent of the child “if no man is treated by virtue of Section 35 as the father of the child and no woman is treated by virtue of Section 42 as a parent of the child but:

• the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, in the course of treatment services provided in the United Kingdom by a person to whom a licence applies;
• at the time when the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, the agreed female parenthood conditions (as set out in Section 44) were met in relation to another woman, in relation to treatment provided to W under that licence; and
• the other woman remained alive at that time.”

The criteria set out in Section 45 of the Human Fertilisation and Embryology Act 2008 applies to other parents as defined under Section 42 and Section 43 of the Act, as follows.

• “Where a woman is treated by virtue of Section 42 or 43 as a parent of the child, no man is to be treated as the father of the child.
• In England and Wales and Northern Ireland, Sections 42 and 43 do not affect any presumption – applying by virtue of the rules of common law (or Section A1(2) of the Legitimacy Act 1976) (or Section 2(1)(a) of the Family Law Act (Northern Ireland) 2001) – that a child is the legitimate child of the parties to a marriage (or civil partnership).
• In Scotland, Sections 42 and 43 do not apply in relation to any child who – by virtue of any enactment or other rule of law – is treated as the child of the parties to a marriage (or civil partnership).
• Sections 42 and 43 do not apply to any child to the extent that the child is treated by virtue of adoption as not being the woman’s child.”

Parental responsibility is otherwise acquired by the other parent after the child’s birth in the same way that it is acquired by an unmarried father – ie, by either:

• subsequently marrying or becoming a civil partner of the child’s mother;
• being registered as the child’s parent on or after 1 September 2009;
• entering into a parental responsibility agreement with the child’s mother;
• obtaining a parental responsibility order of the court so long as the child is under 18;
• being formally appointed as the child’s guardian by the mother or by the court; or
• being named as the parent with whom a child should live – in which case, a parental responsibility order must be made (whereas it need only be considered if the other parent is named as someone with whom the child is to spend time).

Surrogacy

Where a surrogate mother carries and gives birth to a child, she will be the child’s legal mother. If the surrogate mother is married, the husband of the surrogate mother will be treated as the father of the child unless it is shown that he did not consent to the arrangement. An application for a parental order can be made by either one or two applicants, provided that one of the applicant’s gametes were used to create the embryo.

The additional criteria set out in Section 54A of the Human Fertilisation and Embryology Act 2008 where there is one applicant are as follows.

• The application must be made within six months of the child being born.
• The child’s home must be with the applicant who must be domiciled in the UK, the Channel Islands or the Isle of Man.
• The applicant must be 18 or older.
• The mother who carried the child and any other parent of the child who is not an applicant must understand and freely and unconditionally agree to the order being made (unless that parent cannot be found or is incapable of giving agreement and provided the mother’s agreement is not given less than six weeks after birth).
• No money or other benefit (other than for expenses reasonably incurred) must be given or received by either of the applicants for or in consideration of the making of the order, the required agreement, the handing over of the child, or the making of arrangements with a view to the making of the order, unless authorised by the court.
• There must not be any other existing parental orders in place in respect of the child.

The additional criteria set out in Section 54 of the Human Fertilisation and Embryology Act 2008 where there are two applicants are as follows.

• They must be husband and wife, civil partners or living as partners in a permitted and enduring family relationship.
• The application must be made within six months of the child being born.
• The child’s home must be with the applicants, who must both be domiciled in the UK, the Channel Islands or the Isle of Man.
• Both applicants must be 18 or older.
• The mother who carried the child and any other parent of the child who is not an applicant must understand and freely and unconditionally agree to the order being made (unless that parent cannot be found or is incapable of giving agreement and provided the mother’s agreement is not given less than six weeks after birth).
• No money or other benefit (other than for expenses reasonably incurred) must be given or received by either of the applicants for or in consideration of the making of the order, the required agreement, the handing over of the child, or the making of arrangements with a view to the making of the order, unless authorised by the court.
• There must not be any other existing parental orders in place in respect of the child.

These surrogacy provisions do not apply where an applicant is the husband of the other applicant and he had intercourse with the surrogate mother.

Others

Parental responsibility can be acquired by other parents not falling within the above-mentioned categories if they:

• have been formally appointed as the child’s guardian by the child’s parent or the court;
• have been named as the person with whom a child is to live (although their parental responsibility will only last for the duration of the order); and
• have been named as the person with whom a child is to spend time and the court considers it appropriate to confer parental responsibility on them (although this parental responsibility will only last for the duration of the order if granted).

As set out in 1.3 Requirements for Fathers, a child’s father will automatically acquire parental responsibility if they are married to – or, from 2 December 2019, in a civil partnership with – the child’s mother at the time of the child’s birth. The father must otherwise take formal steps, ranging from registration to obtaining a court order, to acquire parental responsibility for the child after birth. The point of conception for married mothers and fathers does not have an impact on the process of obtaining parental responsibility in England and Wales, save that the father’s consent may subsequently be required if parental responsibility is to be conferred on another parent.

See 1.4 Requirements for Non-genetic Parents.

As set out in 1.4 Requirements for Non-genetic Parents, an adoptive parent automatically acquires parental responsibility upon the making of an adoption order.

The court must be satisfied that at least one of the following criteria in Section 47 of the Adoption and Children Act 2002 is met before making an adoption order.

• The child’s parents (ie, those with parental responsibility for the child) must consent to the order being made or the court must think it is appropriate to dispense with such consent.
• If the child was placed by an adoption agency, the child must have been placed with the prospective adopter by the adoption agency and the child’s parents or guardians must not oppose the adoption. The child must have been placed under a placement order or with the consent of the parents/guardians (the child must have been at least six weeks old when the mother provided her consent).
• The child is subject to a Scottish permanence order or is free for adoption under Article 17(1) or 18(1) of the Adoption (Northern Ireland) Order 1987 (SI 1987/2203 (NI 22)).

It should be noted that the court’s leave is required for a parent or guardian to make an application to oppose the making of an adoption order and leave must not be given unless there has been a change in circumstances since the relevant consent was given or the placement order made. The child’s welfare will be paramount to the court’s considerations and the parent’s prospect of success if leave is given will also be relevant.

If a parent wishes to move a child of the family permanently out of the family home to a new country, they require the written consent of every person who has parental responsibility for the child pursuant to Section 13(1)(b) of the Children Act 1989.

If a parent wishes to move a child of the family permanently out of the family home to a new country and they do not have the written consent of every person who has parental responsibility for the child, the parent who wishes to relocate must make an application for the court’s permission to do so. Without the requisite consent or permission of the court, the parent wishing to relocate could find themselves guilty of the criminal offence of child abduction (for more details of which, see 3. Child Abduction).

Section 13(1)(b) of the Children Act 1989 applies only to relocations outside the UK (ie, outside England, Wales, Scotland and Northern Ireland). However, if one parent wishes to move a child from their home permanently, they require:

• the permission of all parties with parental responsibility; or
• an order of the court.

Where there is a Child Arrangements Order stipulating the parent with whom a child is to live, that parent does not require the court’s permission nor the written consent of any other person with parental responsibility to relocate with the child internally within the UK. If the other parent wishes to object to the relocation, they must apply for a Prohibited Steps Order.

The Court of Appeal found in the case of Re C (Internal Relocation) (2015) EWCA Civ 1305 and (2017) 1 FLR 103 that the approach to be taken in such cases is the same as the approach taken in international relocations. The child’s welfare will be the court’s paramount consideration.

It is a criminal offence to remove a child under the age of 16 from the UK without the court’s permission or the written consent of the individuals listed in Section 1(3)(a)(i‒v) of the Child Abduction Act 1984, namely:

• the child’s mother;
• the child’s father (if he has parental responsibility for the child);
• any guardian of the child;
• any special guardian of the child;
• any person named in a Child Arrangements Order as a person with whom the child is to live; and
• any person who has custody of the child.

The exceptions to this being a criminal offence are circumstances where either:

• the parent removing the child believed the other parent had consented or would have consented if they were aware of all the relevant circumstances;
• the parent removing the child had taken all reasonable steps to communicate with the other parent but had been unable to do so; or
• the other parent unreasonably refused to consent.

Furthermore, a parent named as the person with whom a child is to live in a Child Arrangements Order can remove the child from the UK for up to one month under Section 13(2) of the Children Act 1989. Permission from the court or appropriate consent from those with parental responsibility for the child is required for periods longer than this or where there is no Child Arrangements Order in place.

If a child is removed from the UK without the appropriate consent or the court’s permission, the left-behind parent can invoke the procedure set out in the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “1980 Hague Convention”) if the country from which the child has been removed was a signatory (a “convention country”). The UK is a signatory to the 1980 Hague Convention and it is enshrined in domestic law under the Child Abduction and Custody Act 1985 and the Family Procedure Rules Part 12. It is irrelevant whether the child is wrongfully removed to or retained in a non-contracting state, provided the child’s habitual residence was the UK immediately prior to the wrong removal or retention.

The 1980 Hague Convention is intended to protect the child against wrongful removal to or retention within a country that is not their habitual residence. Each contracting state to the 1980 Hague Convention must have a central authority for dealing with facilitating the return of a child who has been wrongfully removed to or retained within that country. The central authority in England and Wales is the Lord Chancellor and the administrative unit associated with this authority is the International Child Abduction and Contact Unit. If a child is removed from their country of habitual residence and taken to England or Wales, the left-behind parent can either contact the International Child Abduction and Contact Unit directly to make an application for the child’s return or they may instruct solicitors to make the application on their behalf.

There is a summary procedure for the child’s return to their country of habitual residence (and, in some circumstances, to a third state). The application must be made within 12 months of the child’s wrongful removal or retention and a decision on the return must be made within six weeks.

The defences against a return order being made are set out in Article 13 of the 1980 Hague Convention, as follows:

• acquiescence and consent to the removal by the parent requesting the child’s return;
• no actual exercise of custody rights by the parent requesting the child’s return;
• grave risk of physical or psychological harm or intolerability to the child; and/or
• the child’s objections considered in light of their age and maturity.

An applicant seeking the return of their child to England or Wales under the 1980 Hague Convention is entitled to non-means or merits-tested legal aid if they apply for the child’s return directly through the International Child Abduction and Contact Unit. Where this procedure is not invoked and the applicant chooses to instruct solicitors to make the application on their behalf, the costs of the proceedings will vary widely between firms. Legal aid may also be available to left-behind parents whose children have been abducted to England or Wales.

If the country from which the child has been removed is not a convention country, then the court still has powers to order its return on an expedited basis but will consider the best interests of the child when considering such an application.

The UK is a signatory to the 1980 Hague Convention. For further details, please refer to 3.2 Steps Taken to Return Abducted Children.

This does not apply to this jurisdiction, as the UK is a signatory to the 1980 Hague Convention.