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Parental responsibility is sometimes referred to by its previous guises of “custody” or “parental rights”. It is frequently misunderstood and is often a very emotive subject.

It is also an area that frequently causes rifts between separated parents - as the fear of a person’s possible actions, if they do or do not have it, can often be misconceived.

What is parental responsibility? Who has it, and what are the implications?

What is parental responsibility?

Parental responsibility essentially boils down to having the right to make a child’s important life decisions, for example, their education, religion, healthcare and where they might live. It is key to note that parental responsibility does not apply to anything other than major life & welfare decisions.

More than one person can have parental responsibility at any given time, and they can use their parental responsibility independently, excepting matters which require the consent of all parties e.g. adoption.

When two people with parental responsibility cannot agree on a related issue, such as which school a child should go to, whether they should have a medical procedure or even if a child should live in another country, then the court may have to make the decision for them.

Parental responsibility cannot be transferred, nor can it be surrendered, save for in an adoption.

Who has it?

A mother automatically has parental responsibility for her children.

When it comes to fathers, it is not as straightforward. If married to the mother at the time of the child’s birth, then the father will automatically have parental responsibility. However, if the father and mother are unmarried at the time of a child’s birth, it gets a bit more complicated.

If the child was born AFTER 2 December 2016 AND the father’s name is on the child’s birth certificate, he will automatically have parental responsibility. If his name is not on the birth certificate, then he doesn’t.

In the case of unmarried fathers whose child was born ON or BEFORE 2 December 2016, then they will not automatically have parental responsibility. In this circumstance, for the father to gain parental responsibility, he would need to either enter into a parental responsibility agreement with the mother or it can be ordered by the court.

Parental responsibility is not always just about mothers and fathers. For instance, it can also be awarded to grandparents. Furthermore, if a Residence Order (an order detailing who a child lives with) has been awarded to someone, they will automatically gain parental responsibility.

What are the implications?

If a father does not have parental responsibility, there are several options to try to obtain it.

A good starting point is to discuss with the mother if they are willing to agree to put the father’s name on the birth certificate and give parental responsibility. If they agree, all that needs to be done is to complete a form and file it with the court - it is as simple as that.

If it is proving difficult to obtain, but the father is on speaking terms with the mother, we strongly recommend that parents try mediation. Family Mediation Jersey provides an outstanding service and can be contacted on http://www.fmj.je/contact-us/ or telephone number 01534 638898.

If gaining parental responsibility is proving to be difficult, or the father is not on good terms with the mother, then the next step is probably to instruct a lawyer. Everything will depend on the specific case circumstances and a lawyer will do their utmost to obtain parental responsibility, whether this is through the court or by obtaining written agreement from the mother. In nearly every case, avoiding the court is most likely to be the best solution, as court proceedings can heighten emotions, as well as being costly.

However, in some cases, seeking parental responsibility through the court may be the only option available.

Should parents ever find themselves in this situation and would like advice, please contact Viberts Family law department. Our dedicated team of family lawyers are available to assist you in a way that is not only discreet but will allow us to give you answers to many of your questions. The first half an hour of our initial meeting is free of charge and can give you guidance in terms of the next steps that you take.