Parental responsibility is a legal term which refers to all the rights, duties, powers, responsibilities and authority which a parent of a child has in relation to the child and his/ her property. This factsheet gives advice on who has parental responsibility and where responsibility lies in situations in which there are disagreements over the best interests of the child.
Parental responsibility includes the right to consent to medical treatment on behalf of the child and the disclosure of information held by healthcare professionals about the child. Those with parental responsibility also have a right to apply for access to their children’s health records, unless the child is capable of consenting.
These rights exist in order to allow those with parental responsibility to exercise their duty of care towards their child. This is a dynamic process, and as the child becomes competent to make more decisions for him/herself, the extent of the parents’ rights to act on his/her behalf diminishes.
If the child is capable of giving consent, they have a right to be consulted and to make their own decisions about their care. Capacity is decision-specific, so a child may be competent to decide certain aspects of their care but not others. In Northern Ireland, once a young person reaches 18, he/she is regarded in law as an adult and parental responsibility no longer applies.
The Family Law Act (NI) 2001 amends the Children (Northern Ireland) Order 1995, and makes provision for the acquisition of parental responsibility by unmarried fathers.
Who has parental responsibility?
Mothers and married fathers have parental responsibility. So do unmarried fathers of children born since 15 April 2002, provided that the father is names on the child's birth certificate.
Unmarried fathers whose children were born before 15 April 2002 – or after this date if they are not named on the birth certificate – do not automatically have responsibility for the child. The father could acquire parental responsibility through a parental responsibility agreement with the mother or a parental responsibility order through the courts. A married step-parent or civil partner may also obtain parental responsibility in this way.
If the parents are divorced, both parents retain parental responsibility for the child. Parental responsibility is lost by those giving the child up for adoption. When the child has been formally adopted, the adoptive parents take on parental responsibility.
The situation is more difficult if the child was conceived by assisted reproduction. Legal parentage in these circumstances is addressed by the Human Fertilisation and Embryology Act 1990. Specific advice should be sought for individual cases.
A Health and Social Care Trust can be designated by the courts as having parental responsibility via a care order, interim care order or emergency protection order in respect of the child.
The Children (Northern Ireland) Order 1995 makes clear that a person who does not have parental responsibility but who nevertheless has care of the child may do what is reasonable in all the circumstances of the case for the purpose of the safeguarding or promoting the child's welfare. In practice, this means that those with parental responsibility may delegate particular responsibilities to others – for example, authorising schools to give treatment for minor ailments.The GMC advises that doctors can rely on the consent of the others if they are authorised by the parents. However, you should make sure that their decisions are in line with those of the parents, particularly in relation to contentious or important decisions.
Parental responsibility includes the right to refuse and consent to treatment. This does not, however, compel the doctor to uphold the parents’ wishes if he believes they are contrary to the child’s best interests. If the matter cannot be resolved by discussion and mutual agreement, it may be necessary to seek a view from the courts. While waiting for this, you should only provide emergency treatment that is essential to preserve life or prevent serious deterioration.
In cases where the child's mothers is herself under the age of 16 years, she will only be able to give valid consent for her child's treatment if she is deemed to have the capacity to make the decision in question.
Generally, consent from only one person is needed for the treatment to be lawful. This means that if the minor is competent to consent then that is sufficient; if not, then consent from one parent or other person with parental responsibility is sufficient.
If there is disagreement, you should try to reach a consensus while avoiding being
drawn into disputes that are not relevant to the child’s treatment. While consent of only one party is required in law, it is good practice to consider the views of both parents if there is a disagreement. If agreement cannot be reached, the doctor must exercise his/her professional judgment as to what is in the best interests of the child.
If the matter under consideration is complex, or there are potentially serious
implications for the child, a second opinion should be sought and consideration given to seeking the authority of the court. If there is dispute over controversial procedures, for example non-therapeutic male circumcision, the doctor should not proceed without the authority of the court.