Parental responsibility and decision making FAQ

In many cases this may not be immediately clear as Ukrainian law operates differently to English law. It might not be clear whether a father has parental responsibility for example. A legal guardian may have been appointed according to the local laws applicable in the country where the order was made.

Parental responsibility is not affected when a parent or legal guardian consents to a child or young person travelling to the UK without them under the Homes for Ukraine scheme.

• A host or adult relative does not acquire parental responsibility as a result of the parent or legal guardian’s consent
• The parent, or any legal guardian, remains responsible for the child and the arrangements for their care
• By consenting to the arrangement, the parent or legal guardian is informally agreeing for the sponsor or relative to make day to day decisions regarding the child’s safety and well-being. But there is no formal delegation of parental responsibility.

In informal kinship arrangements, where the carer has no legal order for the child, there may be no one in England who has parental responsibility for the child. Practitioners will need to support families in this situation as they may face difficulties in making important decisions for the children.

For more information about parental responsibility, including who may have it and how it operates for a child depending on their care arrangements, see here. The page includes access to a parental responsibility quick facts guide.

Some Ukrainian children may travel, or live with, someone who was appointed by the Ukrainian court as:

• A foster carer with parental responsibility for them or
• A guardian with parental responsibility.

Usually such orders, and the parental responsibility they afford their carers, would be recognised in the UK by operation of law. This simply means the order is recognised without having to take further steps. This is possible because of Article 23 of the 1996 Hague Convention.

If the recognition of the order is disputed or challenged, carers can also apply to court in the England for recognition of Ukrainian orders under Article 24 of the 1996 Hague Convention. Recognition may only be refused for one of the reasons set out in Article 23 of the 1996 Hague Convention. For more
information see:

• European e-Justice Portal – Children from Ukraine – civil judicial cooperation (europa.eu) and
• Department for Education guidance on the 1996 Hague Convention pages 28-29 Advice template (publishing.service.gov.uk)

Practitioners may need to clarify that a legal guardian will have been appointed by a Ukrainian court order which is capable of recognition in the UK. Local Authority practitioners should seek legal advice from their legal department and may also wish to speak to Children and Families across Borders who may be able to assist. The Central Authority designated under the 1996 Hague Convention for Ukraine and the relevant part of the UK in which recognition is sought may be able to support this process, subject in particular to the capacity of the Ukrainian Central Authority.

The guidance for local authorities on making a request to the Central Authority can be found here.

The Department of Levelling Up, Housing and Communities can also verify any documents or orders to provide a view on whether an adult can exercise parental responsibility for a child using this email address: HFUUnaccompaniedMinors@levellingup.gov.uk.

Some older children or young people traveling may be legally competent to make decisions of their own. This is often referred to as a child being ‘Gillick competent.’ More information about Gillick competency can be found on the NSPCC website here.

Assessing competence is not straightforward. Many of the older children and young people from Ukraine will have experienced displacement, loss and trauma. Their situation needs to be considered very carefully and in cases where it is unclear whether an older child or young person is competent to
make decisions about themselves, practitioners should seek further legal advice.

The law is clear that local authorities should ascertain, and give due consideration to a child’s wishes and feelings (having regard to the child’s age and understanding). Local authorities should also work in partnership with families.

Whoever has parental responsibility for the child at the time they enter the country will continue to hold it unless the person with parental responsibility dies or a court order says otherwise.

If a person who is not a parent or legal guardian wishes to acquire parental responsibility for a child, they can apply to court for an order. This could happen, for example, where the child’s parents have died and the person caring for the child wishes to acquire an order in England. Or a child’s parent may wish for a child to remain in England cared for by someone else in the long term. Where the parent(s) are alive, the carer should be strongly encouraged to discuss this with the child’s parent(s), and the child (as appropriate having regard to their age and understanding).

In these types of situations, the person caring for the child or young person can apply for a:

• Special guardianship order
• ‘Lives with’ child arrangements order

Practitioners should encourage carers to seek independent legal advice before applying for any order to ensure the carer is clear they are making the best decision for them and the child. They can refer carers to the Law Society’s find a solicitor service.

More information about the different ways a carer who is not a child’s parent can care for a child can be found here. This includes information about how parental responsibility operates within each different type of kinship arrangement and information on how to apply for the different orders.

Wherever possible, a parent should be involved in decisions about their child. It is recommended that multiple means of contacting a parent are recorded, such as phone, email and social media. The war may affect the parent’s ability to remain contactable. Having multiple means of contact will reduce the risk of them becoming uncontactable.

Partnership working
Local authorities should always work in partnership with children and families. This includes working with the child’s parent or guardian, regardless of their location. Day to day, partnership working includes:

• Listening to what families think may help them
• Involving children and families in assessments
• Listening to the views of the child before making decisions and plans
• Making decisions with children and families wherever possible.

This will depend on the visa scheme under which the child is living and whether the carer for the child has parental responsibility.

Child living with a kinship carer who has been made a legal guardian in Ukraine:
The UK should recognise the legal guardianship order and the parental responsibility it gives the carer. In this situation, the carer will be able to make decisions about the child’s health or education.

Child is living with a kinship carer who is not a host, and who has no type of legal order which gives them parental responsibility:
Carers in this situation may face difficulties in making decisions about the child’s health and education. The child’s parents may have to make those decisions from abroad. Practitioners should try to assist kinship families who face any difficulties, including liaising with the school or the child’s GP, or assisting in trying to get parents to make decisions from abroad. Practitioners may wish to discuss the possibility of the carer acquiring parental responsibility through a court order.

Child is living with a sponsor under the Homes for Ukraine scheme:
The sponsor, or an adult relative if one is also residing in the sponsor’s home, can make some decisions about the child’s health and education. If an adult relative is living in the sponsor’s home, the UK sponsorship arrangement consent form (which must be completed by parents when a child is travelling
without a parent or legal guardian under the Homes for Ukraine scheme- see here) must specify whether it is the sponsor or adult relative who will have day to day responsibility for the care of the child. This includes who will make decisions about the child’s education and medical treatment. A sponsor, or adult relative, can apply for a school place. Most local authorities have published information on their websites regarding the school admissions process. Sponsors or adult relatives will need to be prepared to share the notarised consent and/or sponsorship consent form if requested.