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Parental Rights And Responsibilities Being Given To Those Who Are Not Parents Notes

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A more recent version of these Parental Rights And Responsibilities Being Given To Those Who Are Not Parents notes – written by Oxford students – is available here.

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Who has parental responsibility?

1. Mothers

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All mothers have parental responsibility

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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....

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CA 1989 s.2: He is married to the mother

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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

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CA 1989 s.4: He obtains a parental responsibility order from the court

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CA 1989 s.12(2): He has been granted a residence order

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CA 1989 s.5(6): He has been appointed to be Guardian

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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)

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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

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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

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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

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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.

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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

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Re WB (Residence Order)
? Do try and get round this with willingness to grant shared residence orders

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Re A (A Child)

4. Local Authorities

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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

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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

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But after a year, they can apply for a residence order until the child has been in their care for three years. Relatives

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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

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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

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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

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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.

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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.

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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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