Rachel Freeman, partner at Kingsley Napley LLP discusses the legal position of unmarried parents.
Although English law does not have the concept of the “common law” husband or wife, if an unmarried couple has a child or children, the legal position is set out in the Children Act 1989.
Parental responsibility
An adult can make decisions about a child’s welfare and upbringing if he or she has parental responsibility for that child. Parental responsibility is set out at section 3 of the Children Act 1989 and means “all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property”. Parental responsibility is exercised by the adult for the benefit of the child and the child’s welfare, not for the benefit of the adult.
A mother who gives birth to a child automatically has parental responsibility for that child, as does a father who is married to (or a civil partner of) the mother at the time of the child’s birth. Where the parents are not married or civil partners, the father acquires parental responsibility if he is registered on the child’s birth certificate. Failing that, he can acquire parental responsibility if he and the mother enter into a parental responsibility agreement (which is filed at court) or if he applies to the court for an order that he should have parental responsibility and the court grants his application (section 4 of the Children Act 1989). A mother cannot ask the court to order that a father has parental responsibility. The court will look at the father’s reasons for applying for parental responsibility, the extent of the attachment between him and the child and the extent of his commitment to the child, but with the overriding factor being the child’s welfare and what is best for the child.
In the case of female same-sex couples who are not married or civil partners at the time of the child’s birth, the second female parent can acquire parental responsibility if she is registered on the child’s birth certificate. If she is not registered on the birth certificate, she can enter into a parental responsibility agreement with the other parent or make an application to court for parental responsibility (section 4ZA of the Children Act 1989).
A male same-sex couple in a surrogacy arrangement can obtain parental responsibility by obtaining a parental order from the court.
Some decisions about the child’s upbringing are considered by the courts to be more important than others. Certain decisions can be taken by a parent unilaterally without notifying the other parent (for example what the child does during the day whilst they are with that parent). Some decisions can be made unilaterally but with an obligation on the parent has to notify the other (for example emergency medical treatment). Some decisions can only be made with the agreement of all others with parental responsibility, or the court’s permission, for example, taking the child abroad or changing their school.
Disagreements about the child’s upbringing
If the parents cannot agree on an aspect of the child’s upbringing, they can apply to court for one of the orders set out at section 8 of the Children Act 1989, namely:
• A child arrangements order, which is an order that sets out with whom the child is going to live, spend time and have contact (for example keeping in touch by telephone), and when;
• A prohibited steps order, which sets out any steps that a parent is forbidden to do (for example an order preventing the child from changing school); or
• A specific issue orders, which deals with a specific issue in relation to a child (for example which school the child should attend).
When the court has to deal with any question regarding a child’s upbringing, the child’s welfare is the court’s paramount consideration. In deciding whether or not to make a section 8 order, the court has particular regard to the factors in the welfare checklist set out at section 1 (3) of the Children Act 1989:
• The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
• His physical, emotional and educational needs;
• The likely effect on him of any change in his circumstances;
• His age, sex, background and any characteristics which the court considers relevant;
• Any harm which he has suffered or is at risk of suffering;
• How capable each of his parents, or any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
• The range of powers available to the court.
The court also has to consider the long term effects of any decisions and not just the current situation or short term effects. Judges have to take a holistic approach and make a welfare assessment in the widest sense, taking into account, in the words of the Court of Appeal, “Everything that conduces to a child’s welfare and happiness or relates to the child’s development and present and future life as a human being” (Re G) (Residence:Same-sex Partner) [2006] 2 FLR 614.
In relation to child arrangements orders, there is no formula or standard arrangement for a child’s time with each parent. Each case is decided on its facts, looking at what is best for that child in its own particular situation. Since October 2014, in making decisions about a child the court has to presume (unless the contrary is shown) that the involvement of each parent in the child’s life will further that child’s welfare, provided that the parent can be involved in a way that does not put the child at risk of suffering harm (section 1(6)(a), Children Act 1989). The Children Act 1989 specifies that involvement means “involvement of some kind, either direct or indirect, but not any particular division of a child’s time.” The extent of that involvement is determined by the court, taking into account the factors in the welfare checklist.
If parents separate, they are not required to have an agreement or a court order setting out what should happen in respect of the children. The court will only get involved if it is asked to. The court also has to consider whether or not the court making an order is better for the child than the court making no order at all. It is usually better for the co-parenting relationship if the parents can avoid going to court. Parents should therefore first try to resolve matters between themselves, or with the help of a mediator or family therapist if at all possible.
