Parental responsibility: a short guide for local authority SEND teams

Grace-Mary Sweeney of LASEN explores the concept of parental responsibility, how it interacts with education law, and some practical implications for Local Authority SEND Teams.

This article will consider how the family law concept of parental responsibility can determine who counts as a ‘parent’ for education law purposes.

‘Parents’ have various rights in relation to a child’s education, including the right to appeal to the First-tier Tribunal under s.51 of the Children and Families Act 2014. Local authority SEND teams are tasked with responding to ‘parental’ requests. It is important that local authorities (“LA”) are aware of who may be defined as a ‘parent’ in the education law context.

The definition of ‘parent’ is set out in s.576 of the Education Act 1996:

“‘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”. [1]

The second part of the definition focuses on individuals who support and live with the child. A person “typically has care of a child or young person if they are the person with whom the child lives, either full time or part time, and who looks after the child”. [2] This may include relatives or foster carers.

The first part of the definition enables individuals who have parental responsibility for a child to be recognised as ‘parents’ for education law purposes.

1. What is Parental Responsibility?

Parental responsibility (“PR”) is defined in s.3 of the Children Act 1989 as “all the rights, duties, powers, responsibilities, and authority which by law a parent of a child has in relation to the child”. [3] In practical terms, individuals who have PR can make decisions in relation to a child’s upbringing, including:

• Determining the child’s religion.
• Consenting to medical treatment.
• Determining the child’s education.

2. Who has Parental Responsibility?

It is important to distinguish between individuals who automatically have PR, and individuals who may acquire PR for a child.

a) Automatic

In summary, a mother will automatically have PR for a child. Additionally, a father will automatically have PR, but only if he was married to, or a civil partner of, the mother at the time of the child’s birth. [4]

b) Acquisition

If the father is not married to, or a civil partner of, the mother at the time of the child’s birth, he “shall acquire parental responsibility for the child if –

a) he becomes registered as the child’s father;

b) he and the child’s mother make an agreement (a ‘parental responsibility agreement’) providing for him to have parental responsibility for the child; or

c) the court, on his application, orders that he shall have parental responsibility for the child”. [5]

The ability to acquire PR for a child is not confined to mothers and fathers. A host of individuals may acquire PR, including grandparents, adoptive parents, and special guardians. These individuals may acquire PR by virtue of a court order.

For example, Child Arrangements Orders (“CAO”) regulate “with whom a child is to live or have contact with”. If the Family Court makes a CAO, a person “named in the order as a person with whom a child is to live” will have PR for the child. [6] Similarly, a Special Guardianship Order (“SGO”) provides for a child to live with a ‘special guardian’ and confers PR on the special guardian.[7] It is important to note that more than one person can hold PR for a child at the same time.

Additionally, LAs can acquire PR for children in their care by virtue of a Care Order or Interim Care Order. If a LA acquires PR, this does not mean that individuals who also hold PR for a child are automatically stripped of their PR. The LA shares PR with individuals who already hold PR for a child. However, the LA have the power to “determine the extent to which” individuals with PR “may meet their responsibility” for the child. [8] In other words, when a Care Order is made by the Family Court, the LA “is usually the one in the driving seat”. [9]

Practical Implications for Local Authority SEND Teams

The definition of ‘parent’ for education law purposes is expansive. A range of individuals, including LAs, can be defined as a ‘parent’ if they have PR for a child. It is important that LA SEND teams are aware of who may be defined as a ‘parent’. As noted above, ‘parents’, have various rights in relation to a child’s education, including:

• The right to access a child’s educational information.
• The right to participate in decisions about a child’s education.
• The ability to make a request to a LA to secure that a particular school is named in a child’s EHC Plan.
• The right to appeal to the First-tier Tribunal under s.51 of the Children and Families Act 2014.

Grace-Mary Sweeney is a Paralegal at LASEN Ltd.

LASEN are hosting a virtual training half-day for local authority SEND and EHCP officers on 19 October 2021 from 9.30am to 12.30pm. For more information on the event, local authority employees will need to become members of LASEN at https://www.lasen.co.uk where they will find details on how to attend.  LASEN membership is free of charge but only open to local authority employees.”

This article is written for general information purposes. It does not constitute legal advice and should not be relied on as such.

[1] Education Act 1996, s 576

[2] Department for Education Guidance, ‘Understanding and dealing with issues relating to PR’ (September 2018)

[3] Children Act 1989, s 3

[4] Children Act 1989, s 2

[5] Children Act 1989, s 4 (1)

[6] Children Act 1989, s 12 (2)

[7] Children Act 1989, s 14 (C) (1)

[8] Children Act 1989, s 33 (3) (b)

[9] R (H) v Kingston Upon Hull City Council [2013] EWHC 388 (Admin) [52]