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Law Notes Family Law Notes

Harris And Gilmore Notes

Updated Harris And Gilmore Notes

Family Law Notes

Family Law

Approximately 416 pages

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:

Harris and Gilmore [2010] CFLQ 151

Parental Responsibility

  • How is it defined?

    • Parental responsibility is defined by reference to the existing law, as being 'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child'.

      • It has been said, for example, that 'parental responsibility encapsulates all the decision-making power and authority that parents need to provide effective long-term care for a child'

      • Certainly this is the impression given by the wording of the section, and accords with the intentions behind parental responsibility when it comes to parents themselves, as seen above

    • Initially, the courts were aware that parental responsibility was intended to involve substantive rights, etc and, when faced with applications by fathers who did not automatically have parental responsibility, turned to the policy underpinning the Act to guide their thinking

      • Balcombe LJ pointed out that the reason for not granting all fathers parental responsibility as of right

        • was that 'the position of the natural father can be infinitely variable', ranging from the married father,

          • to the case where there was 'only the single act of intercourse (possibly even rape)' to connect the father to the child

      • The Court of Appeal therefore suggested that certain criteria ought to be met by an applicant father before parental responsibility would be granted; in Re H, criteria which might be relevant were said to be:

        • '(1) the degree of commitment which the father has shown towards the child;

        • (2) the degree of attachment which exists between the father and the child, and

        • (3) the reasons of the father for applying for the order'.

          • This approach demonstrates a construction of parental responsibility which involves substantive rights and powers, hence the need for care to be taken in its allocation to parents who would not otherwise have it.

  • How is it now interpreted?

    • It appears to have been diluted

      • From the high point of compliance with the scheme intended by Parliament there has been a consistent trend in the case law downplaying both the potency and primacy of parental responsibility,

        • with the concept being constructed as a form of status recognition with limited or no practical effect

      • An explicit step was seen in Re S (Parental Responsibility), Ward LJ said that it was:

        • 'wrong to place undue and therefore false emphasis on the rights and duties and powers comprised in “parental responsibility”

          • and not to concentrate on the fact that what is at issue is conferring upon a committed father the status of parenthood for which nature has already ordained that he must bear responsibility

      • A few years later, Ward LJ reaffirmed this view, saying that 'it should be understood by now that a parental responsibility order is one designed not to do more than confer on the natural father the status of fatherhood'

        • and that 'it is important that, wherever possible, the law should confer on a concerned father that stamp of approval'

      • In Re H (Parental Responsibility), Butler-Sloss LJ said that '[p]arental responsibility is a question of status … The grant of the application declares the status of the applicant as the father of that child'

  • Why is this bad?

    • How can it be 'wrong' to place emphasis on the rights and duties and powers of parental responsibility when those are the precise terms in which the Children Act defines parental responsibility?

      • It would, in a sense, be wrong if one overlooked the responsibilities and authority also encompassed in parental responsibility, but somehow one does not think that was what Ward LJ meant,

        • given his dichotomy between 'rights and duties and powers', on the one hand, and 'the status of parenthood' on the other.

          • Parental responsibility was designed to separate out parenthood as a question of fact from parenting as an on-going child-raising act

    • Reece: Looking at these cases as a whole, the pattern that can be seen is that parental responsibility is increasingly granted to men who are going to play no real part in their children's upbringing, primarily as a means of placating them.

      • 'the courts are on occasion deciding parental responsibility on the basis of adults' need for recognition', and goes on to point out that:

        • 'the argument for granting parental responsibility is not that an adult needs the effects of a legal order,

          • but that an adult needs the legal order itself, irrespective of any tangible effects.

    • Harris and Gilmore: To the extent that this is true, we would suggest that the courts have robbed parental responsibility of its substantive content.

      • Granting parental responsibility orders to fathers who are to have little if any involvement in their children's lives,

        • makes it almost impossible to see parental responsibility as something of substantive significance

      • At the same time, there was another development in the courts' thinking on parental responsibility, in the form of the creation of a 'right to be consulted on … important occurrences in the child's life' before another person with parental responsibility acts.

        • Such a right, we recognise, may be seen as adding to the range or content of parental responsibility.

        • However, we argue that the main effect of this development is in the correlative duty to consult.

          • This duty significantly qualifies the right to act independently, and so represents a further erosion of the potency of parental responsibility

          • Such a duty to consult is contrary to the express wording of the Children Act, which provides that '[w]here more than one person has parental responsibility, each of them may act alone and without the other in meeting that responsibility',

            • provided there is not a statutory provision requiring the consent of that other person, and that doing so would not be contrary to a specific court order

The No-Order Principle

  • As seen before, the precise effect of section 1(5) was not...

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