#1801 - Parental Rights And Responsibilities Being Given To Those Who Are Not Parents - Family Law

Who has parental responsibility?

1. Mothers

• All mothers have parental responsibility

• Herring: The rule that all mother’s automatically have parental responsibility can be explained by the fact they’ve gone through the birth process and pregnancy

  • Her demonstration to the child through pregnancy and acceptance of caring for the child after birth,

    • Means that it’s in the child’s best interests for her to have parental responsibility

2. Genetic (or those relying on a presumption of genetic parenthood) Fathers if....

• CA 1989 s.2: He is married to the mother

• CA 1989 s.4: He is registered as the father of the child on the birth certificate

  • Or he enters into a parental responsibility agreement with the mother

• CA 1989 s.4: He obtains a parental responsibility order from the court

• CA 1989 s.12(2): He has been granted a residence order

• CA 1989 s.5(6): He has been appointed to be Guardian

• He has adopted the child

3. Non Parents (but they don’t necessarily get all the rights or responsibilities that flow from being a legal parent)

• CA s.5(6) Guardians

  • Who can be appointed by a parent

    • Where a residence order is made in favour of one parent, and that parents dies having appointed G

      • G will have his guardianship take effect on the death of the parent with the residence order –

        • even if another parent is still alive and has parental responsibility

    • Where there is no residence order, and a parent dies after appointing a guardian

      • Then the guardianship does not come in to effect until the other parent with parental responsibility dies

  • OR s.5(2) by the court

    • If there is no other parent with parental responsibility, then the court can appoint a guardian

      • Even if other guardians have already been appointed (but they are either unwilling or unsuitable to carry out the role)

    • However, the exception is that the courts can appoint even if there is an extant person with parental responsibility if the dead parent carried a residence order.

  • In deciding to appoint, the best interests of the child is the paramount consideration

    • Although there is no need to do the checklist of s.1(3) here.

• Someone who obtains a residence order in favour of the child

  • Non-parents can’t apply for parental responsibility separately – but they do get it if they’re conferred with a residence order

    • Herring: Arguably that they should have wider powers than this

      • Re WB (Residence Order)

    • Do try and get round this with willingness to grant shared residence orders

      • Re A (A Child)

4. Local Authorities

• LAs acquire parental responsibility if:

  • They obtain a care order

  • They obtain an emergency protection

People who do not get parental responsibility automatically, but may have some rights towards a particular child

Foster Parents

• The foster parent does not get parental responsibility automatically. However, per s.3(5) CA 1989:

  • (1) A person who

    • (a) does not have parental responsibility for a particular child;

    • BUT (b) has care of the child

  • May (subject to the Provisions of the is Act, do what is reasonable in the circumstances of the case for the purpose of safe-guarding or promoting the child’s welfare

• But after a year, they can apply for a residence order until the child has been in their care for three years.

Relatives

• S.105 CA 1989 – Relatives include:

  • A grandparent, brother, sister, uncle or aunt (whether of the full blood or half blood or by affinity) or step-parent

• What legal rights to relatives have?

  • They also benefit from s.3(5) CA 1989 if the child is in their care

  • They do not automatically get parental responsibility

    • BUT If the child has lived with them for a year, or with consent of the parents, relatives can apply for a s.8 residence order w/o need for leave of the court

      • Even if the child hasn’t lived with the relative for the year, they can still apply but need leave of the court

    • However, a relative is unlikely to be successful unless the parents consent or else are clearly unsuitable for the child

      • Re D (Care: Natural Parent Presumption) = despite F’s drug problem history and his many children with other women, court preferred him to the grandparents for residence.

      • Re H (Residence: Grandparents) – Gs who had cared for a child for six years were granted a residence order, despite M’s objections – there was a very strong relationship between Gs and the child.

  • They may have a stronger chance with contact, however

    • Re A: (S.8 order: Grandparent Application) G wanted contact with her young grandchildren after a bitter divorce.

      • CoA

        • While there is a presumption in favour of contact with parents, there is no such presumption in favour of grandparents

          • The relationship between G and child must be close and strong, and likely to benefit the child.

    • G v Kirkless MBC – Siblings have a strong right to contact, but more distant relatives less so.

  • What if the child is in care?

    • If the child is care, relatives will have a stronger case for contact

      • LAs, when kids are in care, have a duty to promote contact with the wider family

      • Re M (Contact: Grandmother’s application for leave) – order for reasonable contact between G and child –

        • CoA: G play a special place in any child’s affections. LA has burden of proof in proving why contact should not go ahead

      • Re W (A Child) (Contact: Leave to Apply)

        • Wilson J

          • The question of whether there is a presumption of contact between G and children needs to be reconsidered.

    • And before care, LA is under an obligation to consider placing a child with relatives before taking them into care

      • Re K – failure to consider extended family and not consult them before adoption was a serious flaw in procedure

      • BUT Re R (Adoption: Disclosure) – relatives should not be informed of potential adoption of newborn baby if M has asked the birth be kept confidential.

• Should relatives have legal rights?

  • Why we might want to give them something formal

    • This argument is particularly made in favour of grandparents, which studies show that most children hold their grandparents in special affection

      • Grandparents are often also a source of easy child care – over women in paid work got the grandparents to care for children under-five

      • Where a child is disabled, there may be an even bigger role

    • Merrick: When parents divorce, the paternal grandparents often lose contact with their grandchildren

      • And therefore suffer depression as a result

      • We might therefore want to give grandparents a special legal status to give them some rights

  • Why we might not want to give them something

    • Kaganas and Piper: Giving grandparents rights may give them rights without the attendant responsibilities

    • Crook: Might also impinge on parents being able to raise their children as they wish

    • Douglas and Freeman: Giving grandparents rights would work against the norms that generally govern the relationship between grandparents, their children and grandchildren

      • The norm of non-interference is prevalent – that grandparents support and assist, but don’t interfere in the parental role.

      • No reciprocal idea – grandparents don’t expect anything back.

When will the court grant s.4 Applications?

Factors to take into account:

• The Tripartite Test

  • Re H (Parental Responsibility):

    • 1. The degree of commitment which the father has shown towards the child

    • 2. The degree of attachment which exists between the father and child

    • 3. The reasons the father is applying for the order

  • Re C: (Minors)

    • Mustill LJ

      • Was the association between the parties sufficiently enduring, and has F by his conduct during and since the application shown sufficient commitment

        • To justify giving F a legal status equivalent to that he would have enjoyed if the parties were married?

• Previous contact and commitment

  • Re S

    • Butler Sloss P

      • F who has shown real commitment to the child concerned and to whom there is a positive attachment,

        • as well as a genuine bona fides reason for the application, ought, in a case such as the present,

          • to assume the weight of those duties and cement that the commitment and attachment by sharing the responsibilities for the child with M.

• The child’s views and reaction to the application failing

  • Re C and V

    • Ward LJ

      • It was good for a child’s sense of self esteem that the child thought positively about an absent parent

        • So wherever possible the law should confer on a concerned father that he has that stamp of approval

          • Because he has shown himself willing and anxious to pick up the responsibility of fatherhood and not to deny or avoid it.

  • Re S (A Minor)(Parental Responsibility):

    • Ward LJ

      • Psychiatrists say how important it is that children grow up with good self-esteem and how much they need to have a favourable positive image of the absent parent.

      • Therefore the law should ensure it confers upon a committed father that stamp of approval,

        • lest the child grow up with some belief that he is in some way disqualified from fulfilling his role

        • the reason for the disqualification is something inherent which will be inherited by the child,

          • making her struggle to find her own identity all the more fraught

• Concerns about misuse of the order

  • Re S (A Minor)(Parental Responsibility):

    • Ward LJ

      • There is all too frequently a failure to appreciate that the wide exercise of s 8 orders can control the abuse, if any,

        • of the exercise of parental responsibility which is adverse to the welfare of the child.

        • Those interferences with the day-to-day management of the child's life have nothing to do with whether or not this order should be...