#1779 - Eekelaar Should Parents Have A Right To Consult - Family Law

Should parents have a right to consult?

It was thought not

• Law Commission (1988):

  • Whether or not the parents are living together, a legal duty of consultation seems both unworkable and undesirable” said the Commission, and recommended accordingly, but added that “[t]his will not, of course, affect any statutory provision which requires the consent of each parent, for example to the adoption of the child

• S.2(7) CA 1989

  • “Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility;

    • but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child

But then PC came along

• One such “enactment” appears a few sections later in the Children Act itself.

  • Section 13(1) provides that where a residence order is in force with respect to a child, “no person may

    • (a) cause the child to be known by a new surname; or

    • (b) remove him from the United Kingdom; without either the written consent of every person who has parental responsibility for the child or the leave of the court

  • In Re PC (Change of Surname )

    • Holman J. faced a case where a mother, with whom the three children of her marriage were living after her divorce, wished to change their surnames.

      • Since no residence order had been made, her solicitor, executed a deed poll changing their names

    • Despite the express words of section 2(7), which confer a right to unilateral action except where overridden by “any enactment”,

      • Holman J. held that the section did not “preclude that the consent of more than one person may also be required by some other source of law than an enactment, notwithstanding the first limb of s. 2(7)”.

      • He found such a source in the law as it existed prior to the implementation of section 2(7) which, in his view, prevented the parent of a legitimate child from changing its surname without the consent of the other parent

• What was the earlier source of law?

  • Statute, e.g. What pre-existing “source of law” could have the consequence claimed for it? In the case of change of name, it is arguable that, prior to section 2(7), the power to determine a legitimate child's surname vested in its father under common law by virtue of his “natural guardianship”

    • Section 1(1) of the Guardianship Act 1973 provided that “in relation to the legal custody or upbringing of a minor … a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other”.

      • The impact of this equalisation of authority on the father's “rights” was addressed in two ways.

        • First, section 85(3) of the Children Act 1975 enacted that “where two or more persons have a parental right or duty jointly, any one of them may exercise or perform it in any manner without the other or others if the other or, as the case may be, one or more of the others have not signified disapproval of its exercise or performance in that manner”.

          • This gave a power of anticipatory veto to each parent.

        • Secondly, the Court of Appeal appeared to read into the law a duty to consult even if one of the parents had been granted sole custody after divorce

• Problems with relying on this

  • But this can hardly sustain the basis of Holman J.'s conclusion in Re PC. For the Children Act 1975 was repealed by the Children Act 1989 and cannot form the source of rights thereafter and to hold that the common law position (whatever it was immediately before the implementation of the 1989 Act) overrides section 2(7) is to make the statute subject to the prior law it purported to replace and deprives it of all effect

  • Also Holman J. thought that it was “little short of bizarre” that the consent requirement for changes of name applied to cases where the parent with the child has a residence order and not to those where there is no such order.

    • It might have been a little odd for them to single this occasion out

    • But they may also have been aware of the wide range of circumstances under which parents with parental responsibility can come to live apart.

      • Confining the requirement of consent for name changes and removal from the jurisdiction to cases governed by residence (or care) orders

        • has the merit of restricting the requirement to situations where the...