Parental responsibility = shared care… Or does it?

A common misconception about parental responsibility is that both parents always have it and, on that basis, the parents should have shared care of their child(ren) following their relationship breakdown. 

However, it is not that straightforward: parental responsibility is a different concept to the time and involvement that the child(ren) have with each parent from birth. This can become even more contentious post-separation. 

Parental responsibility, and the parental roles and involvement that are played in a child’s life, is often viewed as one of the most crucial and important aspects of parenting and so it naturally flows that parents are willing to embark on court proceedings concerning this if necessary. Whilst in England and Wales the Children Act 1989 sets out the position as to parental responsibility, there has been a groundbreaking change in the law in Norway. 

Parental responsibility in England and Wales

In England and Wales, parental responsibility is defined in statute as “all the rights, duties, powers, responsibilities and authority by which law a parent of a child has in relation to the child and his property.” In short, this means that a parent with parental responsibility has the right (often in conjunction with the other parent) to make important decisions for the child(ren), for example in respect of the child(ren)’s education, religion and medical treatment. 

So who has parental responsibility and what does this mean in practice?

In England and Wales, the child(ren)’s mother always has parental responsibility. If the child(ren)’s parents are married or in a civil partnership at the time of birth, both parents automatically have parental responsibility. If the parents are not married or in a civil partnership at the time of birth, the child(ren)’s father will automatically have parental responsibility only if he is named as the child(ren)’s father on the birth certificate(s). This does not, however, prevent a father from seeking to acquire parental responsibility in the future (and there are also various circumstances in which other people, such as a step-parent or a grandparent, can acquire parental responsibility if that is considered appropriate). The most common ways of doing so are as follows:

• The father marries the mother or enters into a civil partnership with her, post-birth.
• The parents enter into a parental responsibility agreement. 
• The father obtains a court order granting him parental responsibility. 
• The father is named in a child arrangements order as a person with whom the child(ren) is to live (in which case the court must also make a parental responsibility order), or he is named in a child arrangements order as a person with whom the child(ren) is to spend time with and the court decides that it would be appropriate to make a parental responsibility order in the father’s favour. 

In theory, this therefore means that a father can be heavily involved in the day-to-day life of his child(ren), but at the same time does not have parental responsibility and the right to have a say in important decisions for the child(ren). Similarly, a father may have parental responsibility for his child(ren), but minimal time with that child. 

The position in Norway

By contrast, the law on parental responsibility (relatively) recently changed in Norway. Whilst the law on parental responsibility is, overall, fairly similar across both jurisdictions, there is a distinction.  For children born after 1 January 2020 in Norway, both parents automatically have parental responsibility. This is regardless of whether they are married or cohabiting, and it even applies if they have never been in a relationship.   The mother does, however, have the right to notify the Norwegian National Population Register within one year of paternity being established to claim sole parental responsibility, which the father can oppose should he wish. 

This is naturally a significant change in the law of parental responsibility in Norway. The law eventually changed following lengthy debates, and it removed what was referred to as “the last vestige of the maternal presumption” – being the assumption that a child(ren)’s mother is best suited to have parental responsibility for small children, which is presumably a reflection of the fact that both parents in Norway are entitled to one full year’s parental leave each, in respect of each child (the situation being somewhat more complicated in England and Wales). 

It will be interesting to see whether a similar change will take place in England and Wales in the years to come. 

Sources:

1. Children Act 1989 (England and Wales) (as amended)
2. The Norwegian Children Act of 1981 (as amended)
3. https://www.advokats.no/en/innsikt/who-has-parental-responsibility-legal-principles-in-different-cohabitation-forms
4. https://www.arbeidstilsynet.no/en/pay-and-engagement-of-employees/permisjoner/parental-leave/