Parenthood and parental responsibility PDF

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Various lecturers and tutors gave these lessons....

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Lectures 12 and 13: Parenthood and ‘Parental Responsibility’

a) Who is a parent? There is no definition of ‘parent’ given in the Children Act 1989. ‘Child’ is defined in section 105 The common law presumption: if a child’s parents are married then it is presumed, as a matter of law, that husband is the father of the child and his wife, of course, is the child’s mother. But things are a little more complicated than that in modern life. For discussion see Re H and A (Paternity: Blood tests) [2002] 1 FLR 1145 1. 2. 3. 4. 5.

Following an affair, the wife gives birth to twins She informed the person that she was having the affair with that he was the dad Her husband was the ‘primary carer’ The man wants a declaration that he is the dad and requested a blood test The husband says to the Court, if you order a blood test I will walk away from my family 6. I am going to rely on the common-law presumption and say that you are the father (the husband) 7. This wasn’t fair on the child as this outcome could be wrong 8. Nowadays a DNA test will be ordered

Scientific developments surrounding assisted reproduction have also led to significant changes. See the Human Fertilization and Embryology Act 2008 (sections 33 to 47). Of course, parenthood can mean different things: See the opinion of Baroness Hale in Re G [2006] UKHL 43, paras 33-37 where she drew a distinction between:

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Genetic parenthood (having the genes) Gestational parenthood (carrying your child) Social and Psychological parenthood (person you rely on on a day to day basis who gives you the love, support and respect you need for day to day life)

1. Dispute between a lesbian couple and the child 2. What is the status of a natural parent rather than getting that status in a different way

“Of course, in the great majority of cases, the natural mother combines all three. She is the genetic, gestational and psychological parent. Her contribution to the welfare of the child is unique. The natural father combines genetic and psychological

parenthood. His contribution is also unique…But there are also parents who are neither genetic nor gestational, but who have become the psychological parents of the child and thus have an important contribution to make to their welfare.” These ‘psychological’ parents could include: -

Step parents- Where the child’s parents remarries someone who is not the child’s other parent Adoptive parents- Severs the legal link between the child and their birth parent (S.67 Adoption and Children Act 2002) Special guardians – Does not sever the link but gives enhanced parental responsibility to their holder (sections 14A-14G Children Act 1989) Foster Parents- A child is placed by the Local authority or privately to another family A person with whom a child lives

b) Parental Responsibility (PR) What is it? Parental responsibility is a statutory concept introduced for the first time by the 1989 Act. See s 3(1) of the Children Act which defines it as: “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.” Note the change of language away from parental rights and towards responsibility (although the word rights is part of the definition) Background: Law Commission Report 172, Guardianship and Custody (1988). See Baroness Hale’s assessment: ‘The Children Bill: The Aim’ [1989] Fam Law 217

PR was said by the Lord Chancellor at the time (Lord Mackay of Clashfern) to be “a golden thread” running through the legislation.

The Content of Parental Responsibility

Section 3(1) does not explain what rights, duties etc. a parent has. It is therefore necessary to look beyond the Act, at the statute book generally and at the common law. Writing in the 1970s, Bevan and Parry identified the following matters covered by ‘rights’ or ‘duties’. Other commentators have offered other lists (see, for example, Cretney pp 539-556; Bromley, pp 377-404). Please note that the legal sources of these rights and duties vary.

The Bevan and Parry list: care and control (i.e. possession)- (Child abduction Act) protection and maintenance discipline S.58 CA- You can hit your child but as long as it doesn’t leave a bruise. S54. If you leave a mark its ABH education religious upbringing- Art9 ECHR medical treatment child's surname passports consent to marriage- Parents’ consent needed (Marriage Act) agreement to adoption administration of property representation in legal proceedings

Who has parental responsibility?

Initial Allocation Mothers have parental responsibility – Even if you’re a horrendous mum this can’t be taken away from you. Married fathers- Provided they were married at the time of the child’s birth. This has a very wide meaning ..interpreted by FLA S.1(3) and 1.(4) to include marriage between conception and birth and marriage after the birth See section 2 of the Children Act 1989.

Acquisition

If you do not initially have PR through section 2 it can be acquired through the following provisions: Under the Children Act 1989   

Section 4 (unmarried father - see further details below) Section 4A, as amended by s 75(2) Civil Partnership Act 2004 (step-parent) Section 4ZA (second female parent)

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Section 5 (guardian- If you have children, in the vent of your death this person will look after the child. If you have been nominated you can say your not interested in front of the judge) Section 12 (‘a person with whom a child is to live’ via a section 8 child arrangements order) Section 14C (special guardian- Who holds PR which is of a higher level to any other) Section 33 (local authority under a care order) Section 38 (local authority under an interim care order) Section 44 (holder of emergency protection order)

Under the Adoption and Children Act 2002  

Section 25 (adoption agency and prospective adopter) Section 46(1) (adoptive parent)

Under the Human Fertilisation and Embryology Act 2008 

Section 54 (commissioning parents in surrogacy cases)

Unmarried Fathers and PR Note the discrimination against unmarried fathers in section 2 CA 1989 re’ initial allocation. Is this justifiable? This matter has been considered in B v United Kingdom [2000] 1 FCR 289 (ECHR) and 1. 2. 3. 4. 5. 6.

Child was born into 2 unmarried parents Between 1994 and 1997 the (3 years) they had regular contact with the dad The mum left the UK and went to Italy in 1997 Dad claimed that this constituted abduction Court said he had no PR ECHR- The relationships between unmarried fathers and their children varied on the scale 7. It was justifiable to discriminate against unmarried fathers as there are so many different types of fathers (whether it was a one night stand or a loving and caring father)

R (Montana) v Home Secretary [2001] 1 FCR 358. 1. Dad tried getting his child a British passport 2. Was rejected as the child was born out of Britain 3. As you’re an unmarried father it is justifiable to discriminate in this context

There are now a number of ways through section 4 Children Act 1989 for an unmarried father to acquire PR: -

Birth registration under sections 4(1)(a) and 4(1)(A)

Also note the proposals for joint birth registration in the Welfare Reform Act 2009 (section 56 and schedule 6) – the effect of these provisions would be to reduce a mother’s control over birth registration but they have not been implemented. -

Entering into a PR Agreement (give by agreement PR to an unmarried father by filling out a form) with the child’s mother under section 4(1)(b) The uptake of these has been poor. Why do you think this might be?

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By court order under section 4(1)(c) CA 1989 – Parental Responsibility Order (PRO) There is now a STAUTORY PRESUMPTION OF PARENTAL INVOLVEMENT in section 1(2A) Children Act 1989 that applies to applications for parental responsibility orders under section 4(1)(c). See lectures 14 and 15 for details. See also: See Re H (Minors) (Local Authority: Parental Rights) (No.3) [1991] Fam 151; and Re H (Parental Responsibility) 1998 1 FLR 855 -Degree of commitment -Degree of attachment -Reasons are positive Most applications for PRO’s by unmarried fathers are successful (there were 5520 orders made in 2010) and the attitude of the judiciary is favourable in most cases:

‘I confess to having entertained a secret ambition that I would never be constrained to deny parental responsibility to a loving father.’ (Wilson J in M v M [1999] 2 FLR 737)

Termination of PR   

The child reaches the age of 18 The relevant court order or parental responsibility agreement is discharged Placement for adoption is brought to an end

The PR of birth parents is not automatically brought to an end by serious child maltreatment, or by prolonged absence.

Transfer of PR This occurs on adoption (PR transferred to adopter) and under a parental order under section 54 HFEA 2008.

The Sharing Of PR The PR of birth parents continues after separation and court intervention (except adoption and orders under section 54 of the HFEA 2008). PR can be shared with non-parents, local authorities and adoption agencies.

The exercise of PR when it is shared Section 2(7) of the Children Act 1989 is quite clear: “Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child.”

It has become apparent that the courts have interpreted this section contrary to its original meaning and have concluded that the courts should determine certain issues in the event of a dispute. For example: Re C (Minors) (Change of Surname) [1997] 3 FCR 310 1. 2. 3. 4. 5. 6. 7. 8.

Parents had 3 children They separated and then divorced It was agreed the kids would be looked after by their mother The father disappeared and stopped having contact with the kids She remarries She takes the new surname of the husband The children also want to take this new surname She contacts the lawyer and head teacher and wants to change the name by depole 9. She argues S2(7)- I am acting alone so want to change the surname 10. S.2(7)- You need consent of the other person who has PR and also consent from the Court 11. Judge= You must read it alongside the common law and it is established that if you share PR you should ask the court to do that

Re J (Child’s Religious Upbringing and Circumcision) [2000] 1 FCR 307 1. 2. 3. 4. 5. 6.

English mother who meets Turkish man They get married and return to Englan Has a child Marriage breaks down and he disappears to Turkey He finally comes back to UK and mote has raised kids They go to a non-religious school

7. The dad wants the boy circumcised and requests a lot more ect 8. Held: The courts will decide these matters

Re B (A Child: Immunisation) [2003] 3 FCR 156 1. 2. 3. 4. 5. 6. 7. 8. 9.

2 mums who were primary carers of children Became radically opposed to MMR jab It was said it led to autism They have PR (dads) but have no day to day looking after of the children Mums said they didn’t want to get the jab Dads came to Court Mums wanted to argues S.2(7) as they act alone which was rejected Vaccination was put to the welfare test (what’s best for the children?) Contrary to wishes of the mum the kids had to be vaccinated

c) Parental Responsibility and Children’s Rights

The scope of Parental Responsibility can be limited by the rights (autonomy) of children who have ‘sufficient understanding’ to take their own decisions. A number of significant cases have addressed this issue (particularly in the context of consent to medical treatment):

Gillick v West Norfolk and Wisbech Area HA [1986] AC 112 1. Mrs Gillick had a few daughters 2. Dep of Health sent circular ‘If a girl comes into your surgery and wants advice on contraception and are under 16- we need to get down the rate of teenage pregnancy, therefore give advice to the child without the parents knowing’ 3. This upset Mrs Gillick 4. HOL- Her argument was ‘what about my right as a parent to know?!’ 5. Lord Scarman- Parental rights dwindle as a child reaches an age of maturity 6. Mrs Gillick won in high court, won in COA and lost in HOL

R (ota Axon) v Secretary of State [2006] 2 FLR 206 1. Circular was sent again -This time about abortions- You can arrange it without the parents knowing

Advocates of children’s rights should not get too excited by these developments as in a series of cases the courts have overridden the views of mature children who have refused treatment. These cases have been labelled ‘as a retreat from Gillick’:

Re E (A Minor) (Wardship: Medical Treatment) [1992] 2 FCR 219 – refusal of blood transfusion by 15 year old boy with leukaemia on religious grounds- He was forced to

Re R (A Minor) (Wardship: Medical Treatment) [1992] Fam 11 – refusal of psychiatric treatment by a 15 year old girl- She was forced to have it Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] 1 FLR 1 – refusal of treatment for anorexia nervosa by a 16 year old girl-She was force fed Re M (Medical Treatment: Consent) [1999] 2 FLR 1097 – refusal of heart transplant by 15 year old girl-She wanted to keep her own heart but was forced to have it

Conclusions on PR? ‘There is no doubt that parental responsibility can be an inaccessible concept at the best of times, not infrequently difficult for lawyers to grasp and often very challenging for those who are not lawyers.’ (Black J in Re D [2006] 1 FCR 556)

‘It is unfortunate that the notion of “parental responsibility” has still to be defined by s.3 of the Children Act 1989 to mean “all the rights, duties, powers, responsibilities and authorities which by law a parent has in relation to a child and his property”, which gives outmoded pre-eminence to the “rights” which are conferred.’ (Ward LJ in Re S [1995] 3 FCR 225)

‘[a]lthough the statutory definition of parental responsibility includes reference to ‘rights’ and ‘powers’, I cannot identify any part of the law that gives one parent an automatic right as against the other parent with respect to their child. Parental rights do exist, but they are rights as between parents and non-parents.’ (McFarlane LJ, Making Parental Responsibility Work, [2014] Fam Law 1264)

‘[p]arental responsibility is more, much more, than a mere lawyer's concept or a principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child. Parental responsibility exists outside and anterior to the law. Parental responsibility involves duties owed by the parent not just to the court. First and foremost, and even more importantly, parental responsibility involves duties owed by each parent to the child.’ (Sir James Munby, President of the Family Division in Re H-B [2015] EWCA Civ 389)

Question: Do you consider Parental Responsibility to be a meaningful legal concept?...