People often ask whether an estate will ‘go to Probate’, although many are unclear exactly what this means. A Grant of Probate (or Letters of Administration if there is no Will) authorises the Executor to administer the estate by collecting in...
The 1989 Children Act aimed to clarify the law regarding who could look after children. One of the main new concepts introduced by the Act was that of ‘Parental Responsibility’ (PR). This is the legal term which emphasises that the duty to care for one's children and to raise them to moral, physical and emotional health is the fundamental task of parenthood. It affirms that parents have duties, as well as rights, where their children are concerned. This was a fundamental change in the attitude of the legal system and one which does not yet seem to have been widely understood.
The list of responsibilities involved includes care and control of the child, discipline, protection and maintenance, secular education and religious upbringing, medical treatment, consent to marriage and burial or cremation in the event of the death of a child.
So how is PR obtained? All married parents of children (whether born before or after the marriage and including adopted children) automatically acquire PR. An unmarried mother automatically has PR but an unmarried father does not.
There are now a number of ways in which an unmarried man can acquire PR for his child. Until recently this could only be either by entering into a Parental Responsibility Agreement or by the courts making a Parental Responsibility Order. A PR Agreement has to be registered at the Royal Courts of Justice after it is witnessed by a court official. A PR Order has to be approved by a judge after an application to the court by the father and can be made either with the consent of the mother or at the discretion of the court, if the mother objects. However, comparatively few people have so far made use of this process. Perhaps one reason for the low uptake is that both these procedures are cumbersome. Also, many parents believe, mistakenly, that living together does give a father PR. This is only true in specific circumstances. From 1 December 2003 any unmarried man registered on the birth certificate as the father of a child has automatically been given PR, provided both the mother and father are present at the time registration takes place.
Parental Responsibility can also be granted to people who are not the natural parents of a child. Anybody whose care of a child is court approved by the making of a residence order automatically acquires PR. In addition, adopters and guardians are given PR and in some circumstances it is granted to local authorities or even the courts.
PR is a relatively new concept and is still under examination by the courts. One problem area is whether one person with PR has to consult any other(s) about important decisions affecting a child’s life, such as changing schools or agreeing to medical treatment. The current view of the courts is that if there is any doubt or conflict it is probably advisable to apply for a court order.