Parental Responsibility in Care Proceedings

This is governed by s4 of the Children Act 1989.

A child’s birth mother automatically has parental responsibility for the child.

The child’s other parent has parental responsibility if they are, or were, married to or in a civil partnership with the birth mother, if their name is on the child’s birth certificate by being granted a parental responsibility order from the court, or by both parents signing a parental responsibility agreement in the presence of an official witness and it being lodged with the Court.

In practical terms, parental responsibility means the power to make important decisions in relation to a child. Day to day parenting decisions would be made by the resident parent. When important decisions about a child must be made, all those with parental responsibility for the child should be allowed to participate, for example, pertaining to a child’s religion, education and consent to medical treatment.

For the court to grant a care order to the local authority in respect of a child, the court must be satisfied that the child is suffering or likely to suffer significant harm due to the care being provided, or because the child is beyond parental control. This is called the threshold criteria, as set out in section 31 of the Children Act 1989.

If an interim or final care order is made, then the local authority obtains parental responsibility, which it shares with any parents who have parental responsibility. However, parental responsibility under a care order allows the local authority to set limits upon how the parents exercise their responsibilities for the child. For example, the local authority can decide where the child should live and how often and where the child sees their parent(s) and other family members.

Supervision orders are frequently made where a child remains at home with their parents but where there are some concerns that the local authority wish to monitor. A supervision order places on the local authority a duty to advise, befriend and assist the child. It is usual for a written agreement to be drawn up which the parent(s) are asked to sign, setting out the expectations that the local authority has in relation to how the child is to be cared for. A supervision order can initially last up to a year but this can be extended, upon application to the court, for a maximum of 3 years.

Under an interim or final supervision order, the local authority does not share parental responsibility for the child: the existing parents, or guardians with parental responsibility, will be the only people who are able to make decisions about the care and welfare of the child.

For the court to make a supervision order, it must be satisfied that the Threshold Criteria in section 31 of the Children Act 1989 have been met.

A section 20 agreement is an agreement whereby the parents agree for the child to be accommodated by the local authority. The accommodation could be with another family member, a foster carer or with a residential/secure unit. All those with parental responsibility for the child must consent by signing the section 20 agreement.

A parent with parental responsibility who withdraws their consent to the child being accommodated by the local authority has the right to remove the child from the local authority’s care, even if the other parent had agreed to the accommodation. However, this doesn’t apply if the child is 16 or over and agrees to be accommodated.

A section 20 agreement does not give the local authority parental responsibility for the child. It is simply an agreement that allows the local authority to provide accommodation for the child subject to the agreement. The parent(s) with parental responsibility of the child still make any welfare decisions and should be consulted in this regard by the local authority.

Care proceedings sometimes conclude with a child arrangements order being made in favour of one or more people. This is sometimes made in conjunction with a supervision order. Any person who is named on child arrangements order as a person with whom the child lives, i.e. the resident parent, will obtain parental responsibility for the child. This is shared equally with all other people who hold parental responsibility.

If a child arrangements order is made prior to or during the public law proceedings, the person named on the order as whom the child lives with would become an automatic party to the care proceedings, and would be eligible for non-means, non-merits, legal aid funding.

This is a final order that is usually made when the court determines that a child should not remain in the care of their parents but should instead be placed with a family member or family friend until the age of 18.

The person to whom the court grants a special guardianship order automatically obtains parental responsibility by virtue of the order. They share this with the parents, who should be consulted in respect of major decisions relating to a child’s upbringing. However, if there is a dispute as to the exercise of parental responsibility, the special guardian’s parental responsibility overrides that of the parents.

The special guardian is able to make almost all decisions regarding the child’s care. The only things the special guardian cannot do without the parents’ consent are:

The special guardian must comply with any orders made in respect of family time/ contact with the parents, but if there are no orders in effect, the special guardian can decide what level of contact should take place.

Care proceedings can be very complex, and we always advise that you instruct and consult a solicitor. If you are concerned that a local authority is considering or has started care proceedings in respect of your child, please contact us on 020 7228 0017 to speak with our specialist, friendly Child Care team.