Just because someone is defined as a “parent” of a child under the s.576 of the Education Act 1996 does not mean that they have parental responsibility for that child. Parental responsibility is defined by a separate set of criteria and is what gives people powers to make important decisions in relation to their child’s upbringing. This can include decisions about where a child goes to school and what medical treatment they can or cannot have. Here we explore the definition of parental responsibility, the implications and the circumstances when those with parental responsibility may change.
Note: This is page is not intended as an authoritative interpretation of the law, but to function as guidance. If there are areas of doubt in particular cases, specific legal advice should be sought.
Parents are integral to a child’s education and there are a number of occasions when education settings are required by law to have dealings with a child’s parents. There are, however, differences between who education law may class as a parent and who has parental responsibility.
Who should education settings see as the parent?
The Department for Education defines a “parent” for the purposes of education law as:
- all biological parents, whether they are married or not;
- any person who, although not a biological parent, has parental responsibility for a child or young person – this could be an adoptive parent, a step-parent, guardian or other relative;
- any person who, although not a biological parent and does not have parental responsibility, has care of a child or young person.
This is important because s.7 of the Education Act requires the parents of every child of compulsory school age to ensure that their child receives suitable full-time education. Those defined as parents under the Education Act 1996 also have a right to participate in decisions about a child’s education.
What is parental responsibility?
Parental responsibility is defined under family law in s3 of the Children Act 1989 as:
- In this Act “parental responsibility” means 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.
- It also includes the rights, powers and duties which a guardian of the child’s estate (appointed, before the commencement of section 5, to act generally) would have had in relation to the child and his property.
What does this mean?
Essentially, this means that people who have parental responsibility for a child are able to make important decisions for that child and receive information about them, unless there is a court order saying otherwise. Such decisions include things like where the child lives, choice of schools, agreeing to medical treatment (although there are exceptions to this in emergencies).
Ultimately, the reason that parental responsibility is important is that only people with parental responsibility can make the legal decisions for the child, whilst others can express their views. Therefore if a child is living with a person who does not have parental responsibility for them then there are limitations as to what that carer can and cannot do.
Who has parental responsibility?
- A child’s birth mother (the person who carried the child) unless it’s removed by an adoption order or a parental order following surrogacy.
- A child’s birth father if married to the mother at the time of the child’s birth, or if not, he can gain parental responsibility:
- by registering the child’s birth jointly with the mother;
- by subsequently marrying the child’s mother;
- through a ‘parental responsibility agreement’ between him and the child’s mother which is registered with the court;
- by obtaining a court order for parental responsibility.
- Where two female parents have a child through fertility treatment, the mother’s female partner is treated in the same way as a father. She has parental responsibility if she is married to or in a civil partnership with the mother at the time of the treatment (or if the two women agree in writing that she will be the child’s second parent). She can also acquire parental responsibility in the same way that a child’s father can.
- People who are not the child’s biological mother, father or second female parent can also acquire parental responsibility, e.g. through adoption, legal orders , legal guardianship etc.
- Civil partners have parallel rights to married people in terms of parental responsibility. The same provisions for married people apply to them in terms of:
- acquiring parental responsibility – adoption, agreement with their civil partner or by an order from the court.
- holding parental responsibility.
There are also a number of legal orders which can bestow parental responsibility on an individual.
When does parental responsibility cease?
Where parental responsibility is automatically granted, parents continue to have parental responsibility if they separate or divorce, but not if their child is adopted. In this instance, the adoptive parents will gain parental responsibility, and it will be removed from all others who had it.
Parental responsibility also ends when:
- The child turns 18 years of age.
- A court order is made terminating parental responsibility.
- Court orders such as Child Arrangements Orders or Special Guardianship Order expire or are revoked.
What is the implication for settings of someone having parental responsibility?
Generally, those with parental responsibility are recognised as parents under education law and can, for example:
- add their views when a setting is chosen for the child;
- attend parents’ evenings;
- get information about how the child is doing in the setting, e.g. school reports;
- be told of their right to appeal to a child’s exclusion;
- to be involved in or start the process for looking at whether an Education, Health and Care Plan (EHCP) in required;
- agree to a child’s medical treatment;
- name a child/agree to any change of name;
- withdraw the child from religious education, collective worship and/or sex education;
- to stand for election as a parent governor;
- to vote in elections for parent governors.
What happens if there is a dispute between parents with parental responsibility?
This needs to be resolved by the people who share the responsibility and not by the setting. It is, however, important that we remain mindful of the impact of any such disputes on the child. Unfortunately, there are numerous cases where parents separate, and the breakdown of their relationship is such that any ongoing discussions are acrimonious. As an education setting you should not get drawn into these discussions.
