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:
Alternatively, parental responsibility can be acquired by unmarried fathers in the following ways:
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.
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.
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:
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:
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 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.
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:
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 additional criteria set out in Section 54 of the Human Fertilisation and Embryology Act 2008 where there are two applicants are as follows.
These surrogacy provisions do not apply where an applicant is the husband of the other applicant and he had intercourse with the surrogate mother.
Parental responsibility can be acquired by other parents not falling within the above-mentioned categories if they:
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.
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).
The child’s welfare will be the court’s paramount consideration when determining a relocation application. The exercise has been described by various judges as a “holistic” one, in that it requires a careful balancing of various factors that are relevant to the child’s welfare and circumstances. There is no presumption either in favour of or against these applications.
The welfare checklist at Section 1(3) of the Children Act 1989 presents a useful starting point for what the court will have regard to when determining these applications. Among the factors included in the welfare checklist are:
This list is not exhaustive.
The 2010 Washington Declaration on International Relocation is often cited by judges in England and Wales for the factors that it considers relevant to decisions on international relocation, such as:
Other factors – such as the right to a family life, the genuine nature of any application or objection, immigration issues, and the emotional and psychological effect of a refusal on the parent wishing to relocate – will also be relevant.
Some of the key precedents in this area are:
As set out in 2.3.1 Factors Determining an Application for Relocation, the ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding) will be a relevant factor for the courts in England and Wales to take into account. The weight given to those wishes and feelings will depend upon the age and maturity of the child in question. Whether or not these wishes and feelings are a determining factor will depend on the facts of the case.
As a general rule of thumb, the older the child, the greater weight their voice will carry in relocation proceedings – although that will not always be the case where, for example, it is evident to the court that the child’s views have been influenced by either of their parents. In the recent case of S v D and another (2023) EWHC 984 (Fam), the views expressed by a 14-year-old boy ‒ who intervened in the proceedings himself to remain living in Africa ‒ were determinative.
The relationship a child has to their sibling falls within the category of their emotional needs under Section 1(3) of the Children Act 1989. It is therefore an important factor. However, there is no presumption in favour of or against keeping siblings together.
In the case of CL v AL (2017) EWHC 2154 (Fam), for example, the mother wished to relocate to Australia and the father wished to remain in England. The two brothers concerned wished to live together but did not align on which parent they wanted to live with. The court considered it to be in the best interests of the two brothers to remain living together because of the special relationship between them and the limited options available to them for direct contact to continue if they were not living together. The boys’ wishes and feelings were given weight because of their ages and the strength of the opinions they held but ultimately were not determinative. The court instead balanced the question of to whom more harm would come from a decision to grant or refuse the mother’s application or the father’s.
The loss of contact between the child or children and the left-behind parent falls within the category of their emotional needs under Section 1(3) of the Children Act 1989.
The factors that affect how much weight is given to this will differ in each case. Some relevant considerations for the court might be:
This list is non-exhaustive.
It should be noted that there is a presumption in law pursuant to Section 11 of the Children and Families Act 2014 that it will further a child’s welfare to have both parents involved in their lives unless there is evidence to the contrary.
There is no single reason that an applicant can put forward for relocation to which the court will be most sympathetic. The reasons given by the applicant, and the weight attached to each reason, will depend on the facts of each case.
There are no specific grounds in England and Wales for opposing a relocation. Any person with parental responsibility for a child may oppose their relocation by applying for a Prohibited Steps Order and/or a Child Arrangements Order for the child to live with them if they consider that the move would not be in the child’s best interests.
The costs of bringing a relocation application will vary widely between firms in England and Wales. The process can be expensive, however – given that the proceedings are often hotly contested and protracted.
There is a “no delay” principle in proceedings relating to children in England and Wales, which is enshrined in Section 1(2) of the Children Act 1989: “In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.”
Beyond this principle, there is no set timeline for relocation proceedings. The duration of the proceedings will depend on various factors, including ‒ but not limited to – the evidence required and listing availability within the relevant court.
There is no presumption in favour of the primary care giver or the left-behind parent when relocation applications are considered in England and Wales. The welfare of the child will be the court’s paramount consideration and this is determined by weighing up the various factors that are relevant to the child’s welfare. The weight given to each factor will depend on the specific facts of the case.
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:
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 exceptions to this being a criminal offence are circumstances where either:
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:
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.