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#1856 - The Law Of Parental Responsibility And The Welfare Principle - Family Law

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The Law of Parental Responsibility

What is parental responsibility?

  • The Children Act

    • S.3 states that “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property

    • This doesn’t really answer many questions.

      • Law Com: Didn’t want to make a determinative list, as this would vary from case to case and depend on the age and maturity of the child

      • Lowe and Douglas:

        • 1. Bringing up the child

        • 2. Having contact with the child

        • 3. Protecting and disciplining the child

        • 4. Determining and ensuring the provision of child’s education

        • 5. Consenting to child’s medical treatment/marriage

        • 6. Agreeing to child adoption etc.

    • This is not a complete list, but shows the range of responsibilities

      • Parentline Plus: Parental responsibility give a person performing a parental role “authority, stability and recognition”

        • It also suggests that w/o parental responsibility, there are some important decisions about a child which a person cannot make

          • E.g. choice of school, religion, or surname

    • Herring: Rather than trying to list the issues over which parents can make decision about a child

      • It may be more profitable to consider what limitations there are on the parental power of how to raise a child

      • So the parent can make decisions about all areas of a child’s life, subject to restriction:

        • 1. The Criminal law – cannot assault child

        • 2. Any requirement to consult or obtain the consent of others with parental responsibility –

          • e.g. s13 CA 1989 – cannot change child’s surname unless w/o consent of anyone else w/ parental responsibility

        • 3. The power of the local authority to take a child into care

          • If a child is taken into care by a local authority,

            • this effectively restricts the powers of parents to make decisions about their child’s upbringing.

        • 4. Orders of the court

        • 5. The ability of a child who is sufficiently mature (Gillick competent child)

  • Judicial understanding of parental responsibility

    • Unsurprisingly, the courts have not been consistent in their understanding or parental responsibility

      • A stamp of approval?

        • E.g. (A Minor) [1995] – parental responsibility marks the “status” which nature has bestowed on the father

        • Herring: But so understood, may be little more than a pat on the back and official confirmation that the father is committed

          • Before of course then denying him contact with children.

      • Real rights and responsibilities?

        • M v M (Parental Responsibility) [1999]: despite obvious love and care for child, F denied parental responsibility b/c lacked mental capacity to make decision on child’s behalf

        • Re M (Sperm Donor Father) – court granted contact to F, suggesting parental responsibility might be granted after he’d got to know child

      • Inflexible?

        • Re G (Parental Responsibility Order) – where F had not existing relationship w/ child owing to one night stand, judge granted “suspended parental responsibility”

          • But CoA pointed out that CA 1989 does not permit this – it’s all or nothing.

          • Herring: clear difficulty in deciding whether symbolic value or recognition of real decision making power

Parental Responsibility in Practice

  • Does it really make any difference?

    • Eekelaar: Some people w/o parental responsibility act more like parents than those who actually do have it

      • Lack of parental responsibility doesn’t stop someone from feeding, clothing, caring for, playing with the child.

    • The rights on offer to those with parental responsibility (amongst others)

      • He can withhold consent to adoption and freeing from adoption

      • He can object to the child being accommodated in care and indeed remove the child from that care w/o a court order against this

      • He can give legal authorisation for medical treatment and has a right to access the child’s health records

      • He can make representations about education to the child’s school and withdraw child from certain lessons

      • He will automatically be a party to all care proceedings.

    • Does having these rights make much difference?

      • The most common situations that arise are about whether he can have consented to medical treatment to the child

        • And whether he can be part of care proceedings automatically or not

      • Eekelaar: But it may have enormous significance

        • Has a factual recognition of a state of affairs

        • And has normative implications in “giving the stamp of approval” to the factual situation

      • Think about media furore around Ed Miliband not being on his first son’s birth certificate.

  • The rights of a parent without responsibilities

    • What are some of the rights which flow from simply being a parent?

      • A parent has a right to apply w/o leave for an order under s.8 CA 1989

      • A parent has rights of succession to the estate of a child

      • There is a presumption that a child in LA care should have reasonable contract with each parent

      • Rights of citizenship pass primarily through parentage

      • A Parent cannot marry or have sexual relations with his child

      • A “non resident” parent will be liable to make payments under the CSA 1991 and CSPSSA 2000

    • Baroness Hale in Re G: (Residence: Same Sex Partner)

      • To be a legal parent of a child gives a person legal standing to bring and defend proceedings about the child

        • And makes the child a member of that person’s family

        • But it does not necessarily tell us much about the importance of that person to the child’s welfare

  • The extent of parental responsibility

    • Parental responsibility is near exclusively for life

      • S.2(9) Although a parent cannot surrender parental responsibility, he can delegate it

      • S.2(6) But the fact that a new person receives it does not mean anyone else loses it

        • Unless the child is adopted.

Sharing Parental Responsibility

  • The rule

    • CA 1989 s.2(7)

      • Where more than one person has parental responsibility for a child

        • Each of them may act alone w/o 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.

    • Herring:

      • What this means is that there are two clear points:

        • 1. Except where the statute provides otherwise, each person w/ parental responsibility can exercise it

          • And they can do this alone and w/o obtaining the consent of the others with parental responsibility

            • Or indeed consulting with them.

        • 2. There is no hierarchy among those w/ parental responsibility

          • So no preference is given to mothers over fathers

            • Or between those with whom the child lives and those with whom they don’t live

          • So when F w/ parental responsibility receives Ch in contact, then F can take Ch to church, give an unusual haircut, or feed Ch meat – even if M strongly objects to all these activities

          • Similarly, while Ch is w/ M, M can bring her up as she wishes.

    • Exceptions to the rule

      • 1. CA 1989 s.12(3); s.33(6) Adoption/ freeing for adoption can take place only if all the parents and guardians with parental responsibility consent

      • 2. If the child aged 16/17 wants to marry, all the parents with parental...

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Family Law