Parental Responsibility Definition:
One of the key concepts introduced by the CA 1989 is Parental Responsibility (PR). A deliberate shift away from the idea that parents have "rights" over their child towards the idea that they have "responsibilities" towards their child.
The Act defines PR as "all rights, duties, powers, responsibilities and authoirty which by law a parent of a child has in relation to the child and his property" - S3(1) CA 1989
Who has PR?
Children Act 1989 as amended.
Automatic PR: -
- S2(1) - If married at the time of birth, both mother and father (husband) automatically have PR.
- S2(2)(a) - If unmarried, the mother automatically has PR.
- S2(1A) - Mother's civil partner (conception on/after 6/04/2009) - S49 HFEA 2008
Aquired PR: - Unmarried father can acquire PR in the following ways:
- S2(3) - subsequent marriage to the mother of his child.
- S4(1)(a) - Being named on the birth certificate BUT only for births after December 2003 and the birth has to be registered jointly.
- S4(1)(b) - by entering into a PR agreement made by mother and father and recorded by the court. This agreement must be on prescribed form.
- S4(1)(c) - applying for a PR order made by the court.
- S12(1) - Securing a CAO settling the arrangements on where the child shall live - Court WILL make PR order in the father's favour.
- S12(1A) - where a CAO is made detailing the contact between the child and father, the court has discretion whether to also make a PR order in favour of the father.
Factors to consider when making PRO
The courts paramount consideration is the welfare of the child - S1(1).
BUT in addition to this...
S1(2A) inserted by s11 CFA 2014 - court is to presume, unless the contrary is shown, that the involvement of the parent in the life of the child will further the child;s welfare.
- This provision will only apply when the court is making or revoking a parental responsibility order, or making, varying, or discharging a contested s8 order in favour of a parent. Clear presumption that children should have relationship with both parents.
The court will also have regard to S1(5) - the principle of non-intervention and consideration of the welfare checklist in S1(3).
- Re H: the court looked at which factors would be important...committment/attachment/motive.
Where the father is successful in obtaining a PR order this will give him joint PR with the mother. They will share PR.
Once made a PR order, this will end automatically on the followinge events:
- The child reaching 18
- The marriage of the father to the mother during the minority of the child. THe marriage gives the father PR for his child.
- A court discharging a PR order.
Courts generally in favour of father having PR - even if mother is hostiel and even if the court is not prepared to grant contact to father.
Re G (A Minor)(Parental Responsibility): here the court held that where the Re H criteria are fulfilled, "prima facie it would be the welfare of the child that such an order should be made".
Re D (Contact) and PR: Lesbian Mothers and Known Father: - willing to grant PRO BUT extract undertakings from father not to interfere.
When may the court DECLINE PR to dad?
One situation wher the court may decline father's application is where the father's motive appears to be improper.
W v Ealing London Borough Council - Court of Appeal found motive to try and thwart making of an adoption order.
Re B (Role of Biological Father) - court concerned that the father sought to exercise PR forcefully to assert views and undermine lesbian parents' status.
Re T (A Minor)(PR:Contact): father violently assaulted mother whilst pregnant, and later after child is born, he refused to return the child after having contact. The court refused to make PRO in favour of the father.
Female Parent - S4ZA
where the female partner is not a civil parnter, but is recognised as parent under S43 HFEA 2008 (conception on/after/ 06/04/09) she can acquire PR.
- S4ZA(1)(a) - Joint registration of birth - 334 registrations in 2010.
- S4ZA(1)(b) - Parental Responsibility agreement with mother.
- S4ZA(1)(c) - Parental Responsibility Order
Step-Parent = S4A
S4A - allows step parents and civil partners of the child's parents to obtain PR agreements with the consent of all parents with PR, or to apply to the court for a PR order.
This provision was added by the Adoption and Children Act 2002 - S112 and can operate where a child's parent marries or registers civil partnership with another adult.
NB: for the provision to apply, the child's parent (who is the step-parents partner) must have parental responsibility for the child.
Others who may require PR.
Various other people may also require PR towards to child.
S12(2) and S12(2A) make simular provisions to S12(1) and (1A)
That is, where a child arrangements order is made, the court may make a PRO for the duration of the order. For example, a grandparent may secure a child arrangements order and in tandem with this the court makes a PRO in favour of the grandparents.
NB: the distinction between PR obtained by unmarried father acquried under a CAO - where the unmarried father retains PR even if the child arrangement order is later terminated.
A mother with sole PR could appoint the father as a guardian in her will. On her death, the father would then acquire PR because he is a guardian, even if he had never obtained PR during the mother's lifetime. On the death of a parent, the guardian takes over the responsibilities.
S5(6) if there is a survivng parent with PR the guardian only acquires PR if the dead parent had a residence order and the survivor does not. In all other cases, the guardian only acquires PR when BOTH parents are dead.
The only what a LA can acquire PR is by a care order or emergency protection order and this is shared with all others who have PR for a child. A LA cannot apply for a residence order and therefore acquire PR through the 'back door'.
NB: it is important to note that a variety of people have PR for a child at any one time. This is to encourage parents who have split up to consider what is best for their child. For example, on divorce, the parent who does not have the child living with him will still retain PR for the child and therefore a say in the child's upbringing.
How can you lose PR?
There is no limit to the number of people who can have PR at any one time and no one will lose PR just because another person acquires it. There are 2 situations where PR is lost:
- Parent's death and
- Child's adoption.
Where PR is granted by someone (other than an unmarried father) being granted a residence order that person will lose it automatically when the residence order terminates.
Re P(Terminating PR): confirms the position that PR should be terminated only where this is in accordance with the child's welfare. Despite challenges that Re P was contrary to ECHR, the court is CW v SG held that Re P was still good law and also noted that PR was only likely to be terminated if its continuation would put the child at risk of harm.
Who is a child?
A child is a being who exists independently of its mother's body. Arguably childhood exists until the child has reached the age of majroity - 18 years old.
Article 1 UNCRC - simplistic view and does not reflect reality:
- Family Law Reform Act 1969 - a child at the age of 16 can make decisions in relation to consent to medical treatment.
- Gillick v W Norfolk & Wisbech AHA - it was established that the age at which a child can make decisions for him/herself is flexible and is not tied to the age of majority - 18 years.
- R (ota AXON) v Sec of State for Health - confirmed Gillick.
Children Act 1989
CA 89 reflected the shift in emphasis in the parent/child relationship.
- Parental rights were replaced with parental responsibility - PR
- CA 89 built on the gillick decision. Persons other than parents have the right to challenge decisions in relation to a child's upbringing. LA has wider powers to intervene.
- Since the Child Support Acts (now replaced by Child Maintainence and Other Payments Act 2008) parentage establishes financial responsibility for a child irrespective of the marital status of the parents.
Gillick v Norfolk AHA (Key case)
This case challenged the definition of "child".
Department of Health and Social Security (DHSS) issued guidance on family planning matters to area health authorities. It stated that advice and treatment should be available for all ages. If children under 16 years attended, attempted should be made to involve parents.
- confidentiality between doctor and patients should be preserved, and
- the doctor should exercise his clinical judgment in the best interest of his patient when deciding whether to prescribe contraception.
Mrs Gillick, was the mother of 5 girls under the age of 16. She sought assurances that none of her girls would recieve advice or be prescribed contraceptives without parental consent. The AHA refused to give these assurances on the basis that the doctor concerned must make the final decision. Mrs Gillick took the matter to court, seeking a declaration that the advice in the guidance issued by the DSHH was, unlawful and it adversely impacted on parental rights.
Children Act 1989
Children Act 1989 has developed these points:
- Disputes between parents in relation to children must be decided by applying the welfare principle, but one of the factors the court must look at when applying the principle is "the ascertainable wishes" of the child in the light of age and understanding
- A child can challenge a parent's decision by seeking leave of the court to apply for a S8 order.
- A child cared for by the LA may participate in decisions relating to his upbringing
- The child's consent, if he/she is Gillick Competent, must be obtained for medical or psychiatric examinations.
- The court has limited powers to make S8 orders once the child has reached the age of 16.
The law has not enabled a child to make decisions in all areas of his life. For example, education is still very much under the control of parents and it is the duty of a parent to ensure that the child is recieving adequate education for his age and ability.
The concept of a child is a flexible one - it will not produce a clear answer as it varies depending on the circumstances.
The meaning of PR
S3(1) - "all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his property"
- it is worth noting the guidance issued by the Court of Appeal which is explicitly intended to be brought to the attention of parents who find themselves in conflict about the upbringing of their child. The guidance emphasises that the primary responsibility for ensuring that the child's needs are met lies with the parents, rather than the courts.
Re W (Children: Direct Contact):
McFarlane LJ describes PR as a "significant status between parent and child and between each of the parents". The comments clearly reflect judificial observations that the court are requested to intervene far too readily in matters involving children in private law. He says that it is not acceptable for a parent to shirk that responsibility and simply say "no" to reasonable stategies designed to improve the situation of circumstances between a child.
What does PR include?
1. Providing a home - those who have PR for a child have a prima facie right for the child to live with them and must therefore provide the child with a home.
2. Contact with a child - Prima facie PR involves seeing the child or otherwise having contact, although this will be contingent upon the child's welfare.
- Lord Oliver in Re KD (Termination of Access): "As a general proposition a natural parent has a claim to contact with his or her child to which the court will pay regard and it would not, i think, be inappropriate to describe such a claim as a "right".
3. Education - Education Act 1944, the parent of every child between the ages of 5 and 16 must ensure that he recieved "efficient full time education, suitable to his age, abulity must and aptitude either by regular attendance at school or otherwise".
4. Discipline - At one time a child with PR could inflict moderate reasonable corporal punishment on a child. What is reasonable depends on the circumstances of the case.
- S58 CA 2004 - doesnt outlaw all forms of corporal punishment, as parents (and adults acting in loco parentis) can still continye to raise the defence of reasonable chastisement if charged with offences of common assault or battery against a child).
What does PR include?
5. Vetoing the issue of a passport - A person will PR must, in certain cases, provide consent for the issue of a passport.
6. Taking the child outside of the UK and Arranging the Child's Emigration - Parents with PR, acting in unison, can take the child outside the UK and arrange its emigration. One parent, however, cannot do this unilaterally without the other's consent. Any person who has residence order may remove the child without permission for the period of up to a month but for any longer period they must have written consent of all those with PR.
- Leading Authority: K v K - Court confirmed that it was no longer necessary to distinguish the issue of who is the primary carer and shared care arrangements and that the starting point is S1(1).
7. Representation - In general a child may only bring legal proceedings through his "next friend" and if civil proceedings are brought against him he must be represented by a Children's Guardian. Technically, anyone with PR has the capacity to act in this role.
8. Protection - it is a function of PR that a person is under a duty to protect the child. The extent of the protection depends on the circumstances, and a badly disabled parent would not be expected to protect in the same way as an able bodied one.
and to conclude!
PR is a key factor when dealing with issues concerning children. This becomes increasingly clear as we turn our attention to such matters as S8 orders.
NB: although a failure to obtain parental consent could result in Dr accused of assault parental rights in medical matters are not absolute as they can be overridden by the court, whereby the child is made a Ward of court. Where there are disputes between a Dr and the parents, the court may be ased to intervene under their inherent jurisdiction.