#1787 - Harris And Gilmore - Family Law

Harris and Gilmore [2010] CFLQ 151

Parental Responsibility

• How is it defined?

  • Parental responsibility is defined by reference to the existing law, as being 'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child'.

    • It has been said, for example, that 'parental responsibility encapsulates all the decision-making power and authority that parents need to provide effective long-term care for a child'

    • Certainly this is the impression given by the wording of the section, and accords with the intentions behind parental responsibility when it comes to parents themselves, as seen above

  • Initially, the courts were aware that parental responsibility was intended to involve substantive rights, etc and, when faced with applications by fathers who did not automatically have parental responsibility, turned to the policy underpinning the Act to guide their thinking

    • Balcombe LJ pointed out that the reason for not granting all fathers parental responsibility as of right

      • was that 'the position of the natural father can be infinitely variable', ranging from the married father,

        • to the case where there was 'only the single act of intercourse (possibly even rape)' to connect the father to the child

    • The Court of Appeal therefore suggested that certain criteria ought to be met by an applicant father before parental responsibility would be granted; in Re H, criteria which might be relevant were said to be:

      • '(1) the degree of commitment which the father has shown towards the child;

      • (2) the degree of attachment which exists between the father and the child, and

      • (3) the reasons of the father for applying for the order'.

        • This approach demonstrates a construction of parental responsibility which involves substantive rights and powers, hence the need for care to be taken in its allocation to parents who would not otherwise have it.

• How is it now interpreted?

  • It appears to have been diluted

    • From the high point of compliance with the scheme intended by Parliament there has been a consistent trend in the case law downplaying both the potency and primacy of parental responsibility,

      • with the concept being constructed as a form of status recognition with limited or no practical effect

    • An explicit step was seen in Re S (Parental Responsibility), Ward LJ said that it was:

      • 'wrong to place undue and therefore false emphasis on the rights and duties and powers comprised in “parental responsibility”

        • and not to concentrate on the fact that what is at issue is conferring upon a committed father the status of parenthood for which nature has already ordained that he must bear responsibility

    • A few years later, Ward LJ reaffirmed this view, saying that 'it should be understood by now that a parental responsibility order is one designed not to do more than confer on the natural father the status of fatherhood'

      • and that 'it is important that, wherever possible, the law should confer on a concerned father that stamp of approval'

    • In Re H (Parental Responsibility), Butler-Sloss LJ said that '[p]arental responsibility is a question of status … The grant of the application declares the status of the applicant as the father of that child'

• Why is this bad?

  • How can it be 'wrong' to place emphasis on the rights and duties and powers of parental responsibility when those are the precise terms in which the Children Act defines parental responsibility?

    • It would, in a sense, be wrong if one overlooked the responsibilities and authority also encompassed in parental responsibility, but somehow one does not think that was what Ward LJ meant,

      • given his dichotomy between 'rights and duties and powers', on the one hand, and 'the status of parenthood' on the other.

        • Parental responsibility was designed to separate out parenthood as a question of fact from parenting as an on-going child-raising act

  • Reece: Looking at these cases as a whole, the pattern that can be seen is that parental responsibility is increasingly granted to men who are going to play no real part in their children's upbringing, primarily as a means of placating them.

    • 'the courts are on occasion deciding parental responsibility on the basis of adults' need for recognition', and goes on to point out that:

      • 'the argument for granting parental responsibility is not that an adult needs the effects of a legal order,

        • but that an adult needs the legal order itself, irrespective of any tangible effects.

  • Harris and Gilmore: To the extent that this is true, we would suggest that the courts have robbed parental responsibility of its substantive content.

    • Granting parental responsibility orders to fathers who are to have little if any involvement in their children's lives,

      • makes it almost impossible to see parental responsibility as something of substantive significance

    • At the same time, there was another development in the courts' thinking on parental responsibility, in the form of the creation of a 'right to be consulted on … important occurrences in the child's life' before another person with parental responsibility acts.

      • Such a right, we recognise, may be seen as adding to the range or content of parental responsibility.

      • However, we argue that the main effect of this development is in the correlative duty to consult.

        • This duty significantly qualifies the right to act independently, and so represents a further erosion of the potency of parental responsibility

        • Such a duty to consult is contrary to the express wording of the Children Act, which provides that '[w]here more than one person has parental responsibility, each of them may act alone and without the other in meeting that responsibility',

          • provided there is not a statutory provision requiring the consent of that other person, and that doing so would not be contrary to a specific court order

The No-Order Principle

• As seen before, the precise effect of section 1(5) was not clear. However, early decisions on section 1(5) reflected what we suggest was the policy of the Law Commission and of Parliament,

  • namely of giving primacy to parental authority over the powers of the court. This was achieved by holding that the direction that the court 'shall not make the order …

    • unless it considers that doing so would be better for the child than making no order at all' amounted to a rebuttable presumption against making orders.

• As to the primacy of parental responsibility which section 1(5) was designed to bolster, we saw earlier that the courts originally construed that subsection as a rebuttable presumption

• Where have the courts gone with this?

  • A particularly telling remark was made by Ward LJ in a case about parental responsibility and contact:

    • 'There is, it seems, considerable academic learning as to the meaning to be given to s 1(5) and as to the purpose which it serves.

      • I do not regard it necessary for the purposes of this judgment to enter those troubled waters because, in my view, this section is perfectly clear.

        • It does not … create a presumption one way or another. All it demands is that before the court makes any order it must ask the question: will it be better for the child to make the order than make no order at all?

• Why is this a problem?

  • Respectfully, on that interpretation, the subsection adds nothing of substance to the general welfare principle in section 1(1).

    • Unless Parliament can be assumed to have included the subsection for no substantive policy purpose or legal effect, such a negation of the no order principle is difficult to sustain.

      • Further, since the Act states that the court 'shall not' make an order unless that order will be better than no order at all, Ward LJ's question should not merely be a precursor to the making of an order.

        • The question must be asked, and there must be evidence to support a view that it will be better to make the order than not

  • It thus appears that the courts have increasingly weakened their interpretation of the requirements of section 1(5).

    • Indeed, it could be suggested that they have stripped the subsection of any significant meaning and elevated the views of the court over those of the parent simply on the basis of the courts' superior authority.

    • As such, it arguably flies in the face of Parliament's intention to restrict the courts to intervening only where the best interests of the child are shown to be at identifiable risk unless an order is made, and risks recreating problems similar to those which the Children Act was designed to address

Concrete s.8 orders

• What were these before?

  • In 1996, in response to some trial judges' inclination to make shared residence orders to indicate the parents' equal status,

    • the Court of Appeal stressed that it was the child's perspective that mattered, and suggested that the appropriate order 'depend[ed] on the child's answer to a practical question: “Where do you live?”

  • A similar view could still be seen some years later. In D v D (Shared Residence Order),⁶⁷ for example,

    • Hale LJ stated that she would not place any gloss on the wording of the Children Act,

      • but stressed that a shared residence order was only appropriate where it 'reflects the reality of [the] children's lives'

• How about now?

  • However, an alternative approach arose from Ward LJ. In Re H (Shared Residence: Parental Responsibility),

    • 'a shared residence order is not artificial but of important practical therapeutic importance.

      • This is a case where its making does reflect the reality of the father's...