In this Quarterly Education Law Update, Paul Upson from Napier Solicitors considers updated guidance for schools from the Department of Education about who has parental responsibility for a child and what rights such individuals acquire as a result.

Background

On 13 February 2023, the Department of Education issued Circular 2023/3 – Parental Responsibility: Updated Guidance for Schools (“the Guidance”). This article is a summary of the new guidance.

The guidance is designed to do two things. Firstly, inform schools about the law on parental responsibility (taking into account recent legislative changes). Secondly, to provide advice for schools on how to address issues raised by individuals who have parental responsibility for a pupil (or acquire parental responsibility for a pupil).

What is parental responsibility?

Article 6(1) of the Children (Northern Ireland) Order 1995 sets out the definition of parental responsibility:

“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.

In an education context, parental responsibility gives an individual various rights. For example, they are entitled to express a view on which school the child should attend; to be consulted about and make decisions in relation to the special educational needs of the pupil; to receive the pupil’s annual report; to receive the pupil’s record of achievement in the final years of key stage 2, 4, and sixth form; and to appeal against an expulsion decision in relation to the pupil. Parental responsibility does not just confer rights, it also creates obligations. For example, an individual with parental responsibility must ensure the child’s regular attendance at school.

Who is a parent?

Article 2(2D) of the Education and Libraries (Northern Ireland) Order 1996 sets out a definition of parent:

In the Education Orders “parent”, in relation to a child or young person, includes any person-

a)     who is not a parent of his but who has parental responsibility for him, or

b)     who has care of him,

The Guidance makes it clear that, when making decisions, schools need to take into account not only whether an individual has parental responsibility but whether they fall within the definition of a “parent” under education law.

Who automatically has Parental Responsibility?

A child’s birth mother (the person who carried the child) always has parental responsibility, save where this is removed by an Adoption Order (or a Parental Order following surrogacy).

Parents who were married at the time of the child’s birth (or parents who were married at the time of the child’s adoption) have parental responsibility. They both retain it even in cases where they subsequently separate or divorce.

If a child’s father and mother were not married to each other at the time of the child’s birth, then only the mother automatically has parental responsibility for the child. If the child’s parents subsequently marry, then the father automatically acquires parental responsibility if he is domiciled in Northern Ireland (This also applies to fathers who enter into a civil partnership with the mother from 13 January 2020.)

Who can acquire parental responsibility?

Unmarried fathers

Unmarried fathers can acquire parental responsibility by:

• Entering into a parental responsibility agreement with the child’s mother.
• Applying to court for a Parental Responsibility Order under the Children (Northern Ireland) Order 1995.
• Applying to court for a Residence Order under the Children (Northern Ireland) Order 1995
• Becoming registered as the child’s father on the birth certificate (Note that this only applies to fathers who are registered after 15 April 2002.)
  

Civil partners

An individual will acquire parental responsibility if they were in a civil partnership with the child’s mother at the time of birth. Civil partners can also acquire parental responsibility by becoming registered as a parent of the child; making a parental responsibility agreement with the mother; or obtaining a Parental Responsibility or Residence Order.

Step-parents

A child’s step-parent can acquire parental responsibility by

• Applying for a Parental Responsibility Order.
• By entering into a parental responsibility agreement with the parent of the child who is their spouse or civil partner (or both parents if the child’s other parent also has parental responsibility).
• By adopting the child.

Guardians

A person appointed as a child’s guardian under the Children (Northern Ireland) Order 1995 will acquire parental responsibility for the child concerned.  (The Adoption and Children (Northern Ireland) Act 2022 provides for a “Special Guardianship Order” to be made appointing one or more persons to be a child’s “Special Guardian”. These provisions are not yet in force, but such an Order will place the child to live with someone other than their parent(s) on a long-term basis and confer parental responsibility for the child on the special guardian(s).)

Authorities, agencies and adoptive parents

Where a Care Order has been made in respect of a child, the authority designated by the order will acquire parental responsibility.

Under the Adoption (NI) Order 1997, where an order has been made declaring a child free for adoption, parental responsibility will be given to the adoption agency and the parental responsibility that any person had for the child before the making of that order will terminate. If an Adoption Order is subsequently made, the person(s) adopting the child will acquire parental responsibility and the parental responsibility held by any other person, including the adoption agency, will terminate.

Parent(s) of a child born through assisted reproduction

The married or civil partner of a woman who gives birth following assisted reproduction will be treated as the child’s legal parent, unless it is subsequently proven that they did not consent to the donor insemination.

Where the mother is not married nor in a civil partnership and receives treatment at a licensed clinic, her partner will be treated as a parent where the clinic has received written, signed consent from both parties and neither party's consent has been withdrawn before implanting the embryo. This also applies to same-sex couples who are not married nor in a civil partnership.

Parental responsibility is not, however, automatically conferred to the mother’s partner if they are not married nor in a civil partnership. The partner, whether male or female, will only acquire parental responsibility if they become registered as a parent of the child; make a parental responsibility agreement with the mother; or obtain a Parental Responsibility or Residence Order from the court in their favour. Alternatively, they will acquire parental responsibility by their subsequent marriage or civil partnership.

Parent(s) of a child born through surrogacy

A surrogate will automatically acquire parental responsibility for the child as will their married or civil partner. Together, they will be considered the legal parents of the child, unless the position is changed by a court order. Legal parenthood can be transferred to the intended parent(s) by means of a Parental Order.

What happens if those with parental responsibility disagree?

Generally, any person who holds parental responsibility can act alone. Those with parental responsibility will often make decisions alone in relation to uncontroversial matters. That said, there is an expectation that those with parental responsibility will consult each other, and reach an agreement, on any significant decisions affecting the child. Where there is disagreement between those with parental responsibility on a decision affecting the child, an application can be made to the court for a decision.

Specific Issue Order. The court can be asked to determine a specific question. For example, in the education sphere, a court might be asked to determine the preferred school for the child (where those with parental responsibility cannot agree).

Prohibited Steps Order. The court can be asked to stop an individual with parental responsibility from taking a particular course of action. For example, in the education sphere, a court might be asked to make an order preventing a person with parental responsibility from removing a child from a particular school.

When making decisions in relation to such matters, the court will consider the wishes and views of the child involved.

What does this mean for schools?

Anyone who has parental responsibility for a pupil is entitled to utilise the full range of rights exercisable by a parent in current education legislation. Appendix B of the Guidance sets out a detailed list of such parental rights.

It is important that education professionals treat all those with parental responsibility equally, unless a court order limits a individual’s ability to make educational decisions, participate in school life or receive information about their child/children.

If a school is unclear about how to act in relation to an issue involving parental responsibility, legal advice should be sought to ensure rights are not infringed and that actions are compliant with the law.

What action should a school take if an approach is made about parental responsibility rights?

Before any action is taken to accommodate a request to exercise parental responsibility rights schools should:

• Confirm that the person has parental responsibility;
• Establish which rights will be exercised independently or on a shared basis; and
• Make the necessary administrative arrangements.

Given the need to ensure child protection, in appropriate cases, schools can ask for verification that the person asking to exercise parental responsibility is actually entitled to do so.

What happens if those with parental responsibility disagree about an educational decision?

In an appropriate case, where those with parental responsibility disagree about the best way forward in relation to a particular aspect of the pupil’s education, the school may consider facilitating a meeting with the parties. If, following such a meeting, no agreement is reached, then the school may have no option but to suggest to the parties that a court order is sought.

Conclusion

It is important that schools know which individual (or individuals) have parental responsibility for a pupil. In the majority of cases, this will be uncontroversial. Matters become more complicated if there is a question mark about whether a particular individual has parental responsibility for a pupil; or if the the relationship between those with parental responsibility breaks down. In the latter case, there will be occasions when those with parental responsibility are unable to reach a joint decision on a matter relating to a pupil’s education; and it may be necessary for a court to rule on the best way forward.

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