I. What is Adoption?, Page 3

What is Parental Responsibility?

Legal and biological parenthood are not the same thing. Parenthood is legally defined in the UK in terms of parental responsibility: the duties and rights of a parent (Section 3 of the Children Act 1989, which came into effect on 14 October 1991). Parental responsibility includes the right to decide on a child’s name, schooling, religious upbringing, where he lives and with whom, who his doctor is, the right to consent to medical treatment, impose reasonable discipline: all those things which any normal parent expects to be able to do. It also includes all the duties we expect: the duty to provide properly for the child’s physical care (food, clothing, housing, medical care), education, moral training, etc. And it also enforces a duty to protect the child from harm, and not to neglect or abuse the child.

Parenthood as we commonly understand it differs from parental responsibility in several ways.

• Parenthood is first of all a biological or adoptive relationship. You become a parent by being a genetic or adoptive parent. Parental responsibility is a legal relationship or function and can be vested in someone who is neither a biological or adoptive parent. Biological parenthood is of course inalienable; legal parenthood, as birth or adoptive parents, can be terminated.
• Only people can be parents. Parental responsibility can be vested in people or in corporate bodies (specifically, in local authorities).
• You can become a biological parent at any age, dependent only on your physical capacity. You can become an adoptive parent only if you are 18 (if you are already a biological parent of the child) or 21. In order to for someone who is not a biological parent to have parental responsibility for a child, he must be at least 18 years old.
• Parenthood lasts until the parent dies, no matter what happens, except that an adoptive parent ceases to be a parent if the child is later adopted by someone else. Biological parents are always biological parents, even after adoption. Parental responsibility stops when a person turns 18. Parental responsibility can also be revoked by the courts, and all existing parental responsibility relationships for a child are cancelled by adoption, to be replaced by parental responsibility vested in the new adoptive parents. And parental responsibility can be revoked by the courts even without an adoption; or a person’s right to exercise parental responsibility can be revoked or limited by the courts.
• A biological or adoptive parent can appoint someone to take over parental responsibility if he dies or becomes incapacitated, but not legal parenthood. Only the courts can reassign legal parenthood, with an adoption order.
• It is possible for a person to have no parents: not only an adult whose parents have died, but a child who is an orphan and has not been adopted by anyone, has no parents. But a child under 18 will always have someone with parental responsibility over him. There may be no individual person, it may only be a local authority by default, but some one or some body will have parental responsibility.
• Everyone has at least two parents, unless they are dead, even if they never know or meet them. Many children have only one person with parental responsibility: this is still the case with the majority of children born to unmarried mothers. It is quite possible and not at all uncommon to be a parent living permanently with your child and not have parental responsibility for that child.
• Parenthood carries with it certain automatic rights for the child. If he dies without a valid will, a parent’s children have automatic rights of inheritance. Titles of nobility are inherited from parents. You usually become a citizen of your parent’s country, automatically or of right. Some of these rights through one’s biological parents are lost on adoption (inheritance of property and titles) or gained on adoption (inheritance of property, but not of titles; citizenship in some cases). None of these rights comes attached to parental responsibility. A relationship of parental responsibility does not carry with it any rights of inheritance or citizenship.
• Parenthood also creates other legal relationships in its wake. Many people are related to a person by virtue of being related to his parents: one’s grandparents, brothers and sisters, uncles and aunts and cousins are legally related to you through your parents. These extra relationships are legally cancelled if you are adopted, although they can be recognized for special purposes such as for visiting, in cases of an open adoption, or tracing registries. Parental responsibility does not create any other legal relationships in its wake.
• Parenthood is reciprocal. If you are someone’s parent then that person is your child. The same is true of all the other relationships mentioned in the previous paragraph: you are your aunt’s nephew or niece, for example. Parental responsibility is not reciprocal.
• Parenthood includes incest and marriage prohibitions. In biological parenthood these extend to other relatives as well and these prohibitions persist even after the adoption of one of the parties. Adoptees can legally marry any of their adoptive relatives other than an adoptive parent. There are no such incest or marriage prohibitions attached to parental responsibility, although parental responsibility does place an adult in a position of trust, which carries with it implications for sexual abuse of the child.

Parental responsibility can be given to more than one or two people and can be acquired in a number of ways:

• A woman acquires it automatically by giving birth to a child.
• A married man acquires it automatically on the birth of any child born to his wife, even if he is not the biological father.
• An unmarried man does not acquire parental responsibility for his biological children at birth, but only by formal agreement with the mother on a prescribed form, by court order, or by being appointed the child’s guardian.
• A local authority can acquire parental responsibility under a court order.
• Anyone else can acquire it under a court order, including an adoption order.

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Parental responsibility acquired by a court order lapses when the order itself is revoked. The courts can prevent birth parents or anyone else from exercising their parental responsibility, for example, if they abuse the child, are acting unreasonably or are seen to be unfit parents. Only adoption actually removes parental responsibility from the previous parents — and incidentally, from anyone else with parental responsibility — when it transfers it to the new parents.

© Roger Ridley Fenton