Under the Children Act 1989, parental responsibility 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.’ The child’s mother automatically has parental responsibility for the child.
The child’s father has parental responsibility if he is, or was, married to the mother, if his name is on the child’s birth certificate and the birth has been registered on or after 1 December 2003 or if he has obtained a parental responsibility order from the court. He can also obtain parental responsibility for the child if he and the mother sign a parental responsibility agreement in the presence of an official witness.
Where parents share parental responsibility, it is expected that they will make joint decisions about the child’s care.
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 a final care order is made then the local authority obtains parental responsibility which it shares with the mother and the father – if he, too, has 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 the parents see the child.
Supervision orders are frequently made where a child remains at home with his or her 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 parents are asked to sign which will set out the expectations that the local authority might have about how the child is to be cared for.
Under an interim or final supervision order the local authority does not share parental responsibility for the child. The mother and the father, if he holds 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, the court must be satisfied that the Threshold Criteria in section 31 of the Children Act 1989 has been met.
Section 20 Agreement
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 that have parental responsibility for the child must agree by signing the agreement.
A parent with parental responsibility who objects 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.
Special Guardianship Orders
This is a final order that is usually made when the court determines that a child should not remain in the care of his or her parents but will 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. They share this with the parents but the special guardian’s parental responsibility overrides that of the parents. The special guardian will be able to make almost all the decisions regarding the child’s care without consulting with the parents. The only things the special guardian can’t do without the parents’ consent is change the child’s name, take the child abroad for more than 3 months or agree to the child being adopted. The special guardian must also comply with any orders made about contact with the parents but if there are no orders 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 care team.