Family law notes fully updated for recent exams at Oxford, UK. These notes covers all the major LLB family law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London).
These notes are formed directly from a reading of the cases and main texts and are vigorous and concise.
Every major topic is dealt with in three ways:
A) One page summaries of important c...
The following is a more accessible plain text extract of the PDF sample above, taken from our Family Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Children’s Rights
What is childhood?
When it begins
Childhood in law begins at the birth of the child
The foetus is not considered “a child” but per St George’s Healthcare Trust it is a “unique organism” protected “in a variety of ways” by the law
However, the mother can choose to have a lawful abortion and the father can do nothing about this (C v S)
When it ends
Children Act 1989:
S.105 “a person under eighteen”
But this is not necessarily the end
16 year olds can marry with parental permission
And you cannot adopt until age 21.
Parent’s Rights, Responsibilities and Discretion
Parental Rights – the difficulties in the definition
There is a lot of talk of “parental responsibility” in the Children Act – possibly to emphasise that children are not possessions but people to be cared for
But s.3(1) “In this Act “parental responsibility” means all rights, duties, powers, responsibilities and authority
Which by law a parent of a child has in relation to the child and his property”
Herring: so parents also have rights as well!
Two important distinctions
Firstly, we need to distinguish when talking about parent’s rights:
The rights a parent may have as a human being.
These will be called a parent’s human rights and would include e.g. free speech, right to life
From what we actually mean: the rights that a parent may have b/c she/he is a parent.
These will be called parent’s parental rights and include deciding where the child will live.
Secondly when talking about parental rights, we need to be clear what we mean. E.g. parent’s right to feed a child could mean three things:
1. This could mean that third parties or the state cannot prevent the parent carrying out this particular activity
– no-one is entitled to prevent a parent feeding the child what food the parent believes appropriate
2. Or it could mean that the state must enable the parent to perform this activity
So the State is obliged to ensure that parents have enough money to so they can provide enough money to fulfil the child’s needs
3. Or it means that the acts of parents are lawful.
This means that although it may be unlawful for a stranger to feed the child, the parental right means it isn’t unlawful for a parent to feed a child.
Are parent’s rights and responsibilities linked?
Some views
Lord Scarman in Gillick
Parental rights are derived from the parental duty, and exist only so long as they are needed for the protection of the person and property of the child
The rights exist for the purpose of promoting the child’s interests
Bainham:
Position is not that straightforward – parents have rights b/c they have responsibilities
And they have responsibilities b/c they have rights
Freeman:
Children have a right to responsible parents
The Child-centred and Parent-centred debate
McCall Smith:
Child centred rights are given to parents to enable them to carry out their duties
So the parent has the right to clothe the child as an essential part of enabling the parent to fulfil her duty of ensuring the health of the child
Parent centred rights exist for the benefit of the parent
So a parent can decide what religious upbringing the child should have. The parent gets to decide how to bring up the child in the most appropriate way
These do no harm to the child, do not positively promote welfare, but can benefit the child.
Herring: Distinction does not entirely work
Is the right to feed the child a parent or child centred right?
Such a right is essential for the health of the child
But what kind of food is provided (e.g. only vegetarian diet) is up to the parent
Also, religious upbringing, diet, humour all contributes to a diverse society
So arguable that is promoting child welfare
However McCall’s distinction does do a good thing:
Shows that areas which parents have no discretion – e.g. cannot let child starve
But also areas where parents do have discretion – e.g. whether to feed 5 portions of vegetables a day.
Baroness Hale in R(Williamson) v Sec State Education [2005]:
Children have a right to be properly cared for and brought up so they can take their place in society
Their parents have both the primary responsibility and primary right to do this
The state can step in to regulate the exercise of that responsibility in the interests of the child and society
But the child is not a child of the state, and it is important in a free society
that parents should have a large degree of autonomy in the way they...
Buy the full version of these notes or essay plans and more in our Family Law Notes.
Family law notes fully updated for recent exams at Oxford, UK. These notes covers all the major LLB family law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London).
These notes are formed directly from a reading of the cases and main texts and are vigorous and concise.
Every major topic is dealt with in three ways:
A) One page summaries of important c...
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