The Law Of Parental Responsibility And The Welfare Principle Notes

The Law of Parental Responsibility

What is parental responsibility?

• The Children Act

  • S.3 states that “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property

  • This doesn’t really answer many questions.

    • Law Com: Didn’t want to make a determinative list, as this would vary from case to case and depend on the age and maturity of the child

    • Lowe and Douglas:

      • 1. Bringing up the child

      • 2. Having contact with the child

      • 3. Protecting and disciplining the child

      • 4. Determining and ensuring the provision of child’s education

      • 5. Consenting to child’s medical treatment/marriage

      • 6. Agreeing to child adoption etc.

  • This is not a complete list, but shows the range of responsibilities

    • Parentline Plus: Parental responsibility give a person performing a parental role “authority, stability and recognition”

      • It also suggests that w/o parental responsibility, there are some important decisions about a child which a person cannot make

        • E.g. choice of school, religion, or surname

  • Herring: Rather than trying to list the issues over which parents can make decision about a child

    • It may be more profitable to consider what limitations there are on the parental power of how to raise a child

    • So the parent can make decisions about all areas of a child’s life, subject to restriction:

      • 1. The Criminal law – cannot assault child

      • 2. Any requirement to consult or obtain the consent of others with parental responsibility –

        • e.g. s13 CA 1989 – cannot change child’s surname unless w/o consent of anyone else w/ parental responsibility

      • 3. The power of the local authority to take a child into care

        • If a child is taken into care by a local authority,

          • this effectively restricts the powers of parents to make decisions about their child’s upbringing.

      • 4. Orders of the court

      • 5. The ability of a child who is sufficiently mature (Gillick competent child)

• Judicial understanding of parental responsibility

  • Unsurprisingly, the courts have not been consistent in their understanding or parental responsibility

    • A stamp of approval?

      • E.g. (A Minor) [1995] – parental responsibility marks the “status” which nature has bestowed on the father

      • Herring: But so understood, may be little more than a pat on the back and official confirmation that the father is committed

        • Before of course then denying him contact with children.

    • Real rights and responsibilities?

      • M v M (Parental Responsibility) [1999]: despite obvious love and care for child, F denied parental responsibility b/c lacked mental capacity to make decision on child’s behalf

      • Re M (Sperm Donor Father) – court granted contact to F, suggesting parental responsibility might be granted after he’d got to know child

    • Inflexible?

      • Re G (Parental Responsibility Order) – where F had not existing relationship w/ child owing to one night stand, judge granted “suspended parental responsibility”

        • But CoA pointed out that CA 1989 does not permit this – it’s all or nothing.

        • Herring: clear difficulty in deciding whether symbolic value or recognition of real decision making power

Parental Responsibility in Practice

• Does it really make any difference?

  • Eekelaar: Some people w/o parental responsibility act more like parents than those who actually do have it

    • Lack of parental responsibility doesn’t stop someone from feeding, clothing, caring for, playing with the child.

  • The rights on offer to those with parental responsibility (amongst others)

    • He can withhold consent to adoption and freeing from adoption

    • He can object to the child being accommodated in care and indeed remove the child from that care w/o a court order against this

    • He can give legal authorisation for medical treatment and has a right to access the child’s health records

    • He can make representations about education to the child’s school and withdraw child from certain lessons

    • He will automatically be a party to all care proceedings.

  • Does having these rights make much difference?

    • The most common situations that arise are about whether he can have consented to medical treatment to the child

      • And whether he can be part of care proceedings automatically or not

    • Eekelaar: But it may have enormous significance

      • Has a factual recognition of a state of affairs

      • And has normative implications in “giving the stamp of approval” to the factual situation

    • Think about media furore around Ed Miliband not being on his first son’s birth certificate.

• The rights of a parent without responsibilities

  • What are some of the rights which flow from simply being a parent?

    • A parent has a right to apply w/o leave for an order under s.8 CA 1989

    • A parent has...

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