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Harris And Gilmore Notes

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Harris and Gilmore [2010] CFLQ 151 Parental Responsibility

How is it defined?
o 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 o 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, o 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'. o 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?
o 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" o and not to concentrate on the fact that what is at issue is conferring upon a committed father the status of

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