Parental Rights And Responsibilities Being Given To Those Who Are Not Parents Notes
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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 o 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 o 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 o 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 - o 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 o 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. o 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 o 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: o They obtain a care order o 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: o (1) A person who (a) does not have parental responsibility for a particular child; BUT (b) has care of the child o 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: o 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? o They also benefit from s.3(5) CA 1989 if the child is in their care o 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. o 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 o 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. o What if the child is in care?
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