This is an extract of our Eekelaar Should Parents Have A Right To Consult document, which we sell as part of our Family Law Notes collection written by the top tier of Oxford students.
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Should parents have a right to consult?
It was thought not
Law Commission (1988): o 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 o "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. o 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 o 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?
o 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".
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