Who may care for children? Parents and Grandparents rights

Parental Responsibility Rights of Parents and Grandparents

There are often misunderstandings, especially after separation or divorce, as to the role of different kinds of carers and their rights and responsibilities. We detail the main groups of people who may care for children and their basic legal position. Please note this is a guide only and we accept no liability fo innacuracies

Married Parents

Each have parental responsibility for their child and have the right to have their child living with them, unless the court has made a residence or care order saying the child should live with someone else. They can exercise their parental responsibility independently of each other. Both parents continue to have parental responsibility even if they separate or divorce unless the court orders otherwise

Unmarried Mother

Whether or not she is living with the father of the child, has sole parental responsibility for the child.

Unmarried Father

An unmarried father can acquire the following rights and responsibilities:-

Parental responsibility. This can be done by a parental responsibility agreement made with the mother, or by applying to court for a parental responsibility order. These give the father equal responsibility with the mother in relation to the child

The right to have the child living with him - a residence order. The residence order can stipulate that the child should live with the father all the time, or for certain periods of the year, for example, during school holidays or at weekends. If he obtains a residence order in his favour, the court will also automatically grant him a parental responsibility order

Contact with the child. The courts generally take the view that the child should have contact with both parents wherever possible, provided that this is in the best interests of the child. The father can apply for a contact order

The right to prevent someone with parental responsibility taking any action, for example, stopping the child being taken out of the United Kingdom. This is called a prohibited steps order and may apply to anyone

The right to bring a dispute about any issue relating to the child to the court for a decision, for example, disputes about the child's education or medical treatment. This is known as a specific issue order and it can be attached to a residence/contact order or be made independently

Guardianship If the father does not have parental responsibility, he can apply to the court to be appointed the child's guardian if the mother has died. This would give him parental responsibility. However, the father would be in a stronger position if he had applied for a parental responsibility order

Adoption. A father might apply to adopt the child. This is only likely to happen if the child is looked after by him and his wife and the child's mother is dead or has no contact or relationship with the child

If an unmarried man has a child, the child's mother can apply to the Child Support Agency for a maintenance assessment for the child. If she is claiming income support, income-based jobseeker's allowance, family credit or disability working allowance, she will be contacted automatically by the Child Support Agency. The father can be required to pay maintenance until the child reaches the age of 16, or 19 if in full-time, non-advanced education.

Grandparents

Grandparents have no automatic rights or responsibilities in relation to their grandchildren. They may be able to acquire rights and responsibilities through the court in the following ways:-

By applying for a residence order and/or a contact order. If the grandchild has lived with the grandparent for three years, the grandparent is entitled to apply for either of these orders. If the child has not been living with the grandparent for three years, the grandparent must ask the court for permission to apply for one of these orders. A residence order would also give the grandparent parental responsibility for the child. The local authority may pay residence order allowances to grandparents

By applying for a prohibited steps order or a specific issue order, if they have a residence order. The grandparents would need to ask the court's permission to apply if they do not have a residence order.

By adoption in very limited circumstances or by making a child a ward of court

Foster Carers

Foster carers have day-to-day responsibility for looking after a child in their care. They have no automatic parental responsibility. Parental responsibility remains with the parents and, if there is a care order, with the local authority. Foster parents in certain circumstances can apply to court to obtain rights in relation to the child.

Other Relatives & Friends

A child often has a close relationship with other relatives and friends and sometimes may be fully cared for by them. However, these adults have no rights and responsibilities in relation to the child unless these have been granted by a court or the person is a guardian. They can ask the court's permission to apply for a residence, contact, prohibited steps or specific issue order or they may have an automatic right to apply for a residence or contact order if the child has lived with them for three years or if someone with parental responsibility has given them permission. They may be paid a residence order allowance

Surrogate Parents

Surrogacy is an arrangement whereby a woman agrees to become pregnant and then hands the child over to another woman or couple. The surrogate mother may conceive using the sperm of either the commissioning man or a donor. Alternatively a couple could have in-vitro fertilisation treatment and have the embryo transferred to the surrogate mother

Despite the surrogacy arrangement, the woman who has given birth to the child is seen in law as the child's mother and retains exclusive rights over that child if she is single

If she is married, the child is assumed to be a child of the marriage and the woman and her husband each have parental responsibility

A married couple who commissioned the child can apply to court for an order which would result in the child being treated in law as their child ('a parental order'). Certain conditions have to be met:-

At least one of the couple must have contributed genetically to the child; the child must be resident with the couple; there must be no payment involved except reasonable expenses allowed by the court; and the surrogate mother and her husband (if any) must have agreed unconditionally to the parental order

If the commissioning parents are not married, they will not be able to obtain a parental order but they may be able to apply to the court for another order, for example, a residence order or a contact order

A single commissioning mother cannot obtain a parental order but can apply for another order, for example, a residence order

If the child was conceived as a result of intercourse between the surrogate mother and the commissioning father, the commissioning father could acquire parental rights, for example, by making a parental responsibility agreement with the surrogate mother whether or not she is married to someone else at the time of the birth

Whenever the court makes an order in a case involving surrogacy, the welfare of the child is of paramount importance, irrespective of the arrangements planned by the adults involved in a surrogacy arrangement

It may be possible for the commissioning couple to adopt the child

Parents Who Have Children by Donor Insemination

If a child born after 31 July 1991 is conceived by donor insemination, arranged through a licensed establishment to a married couple, the married man is the legal father of the child unless he can prove that he did not consent to his wife having donor insemination. The baby must be registered as if it were the child of the couple

For unmarried women, the child's birth is registered with 'father unknown'. If the woman has a male partner who wishes to register on the birth certificate as the father, he may do so under certain circumstances. If the woman has a woman partner, the partner can apply to court for a joint residence order with the mother in order to acquire parental responsibility once the child has been born

If donor insemination is not arranged through a licensed establishment, the position of the mother and donor would be the same as that of any other unmarried mother and father, if the mother knows who the donor is, for example, the donor would have financial responsibilities for the child and could apply for a parental responsibility order

If the mother did not know who the donor is, for example, if the donor insemination had been arranged through a third party, the donor cannot be pursued, for example, by the Child Support Agency and an intermediary cannot be forced to reveal the donor's name. If the donor insemination were arranged through a licensed establishment, the donor cannot be recognised as having parental responsibility because the law says that the child has no legal father

Step Parents

If a parent has a residence order in her favour, s/he can go back to court to have the order varied to include the step-parent. This will give the step-parent parental responsibility for the child

The step-child has no automatic rights of inheritance from her/his step-parent

Even if step-parents do not have parental responsibility, they do have some responsibility towards step-children whom they have treated as members of their own family (known as 'child of the family') and may be required by the court to provide financial support for step-children if the marriage ends. This will not usually happen if the children are being financially provided for by their original parent

If the marriage between the step-parent and the parent ends, the step-parent could ask for leave to apply for a contact order