Family LawChildren Act 1989

Lecture 1

Shummi Shahshummi.s@hotmail.co.uk

Lesson Objectives:

All learners will be able:• To be able to define what is parental

responsibility under the Children Act 1989.Most learners will be able:• To be able to distinguish a parent from a

person who has parental responsibility.Some learners will be able:• To be able to list at least 4 different types of

people who can have parental responsibility.

The Changed Position of Children

• A “possession” • Illegitimate child had no rights – “filius nullius” - no parents and no

right to maintenance or property.• Legitimacy Act - by subsequent marriage of the parents the child

became legitimate. • FLRA 1987 removes the rule, with the concept of “parent” being

separated from the concept of marriage• Rights under the Inheritance (Provision for Family and Dependants)

Act 1975 to apply for provision.• Shift from the “power” relationship of “parental rights” to the more

child focused “Parental responsibility”. • The parent holds rights only for the benefit of the child• It is a short step from this to the autonomous possession and exercise

of rights by children.

Who is a “Parent”?

• Before we look at rights and responsibilities we must ask this question:

• If, F who is a sperm donor? – is he a parent?• Is biological link sufficient?• Should he have rights? (e.g. contact)• Should he have obligations (e.g. to pay

maintenance)• Leeds Teaching Hospital NHS Trust v A [2003]

EWHC 259

Children – Who is a “Parent”

• At common law biology determines the answer.• Impossible to prove paternity so the law used

presumptions. • If a child was born to a married woman her

husband was presumed to be the father unless proved otherwise

• s26 FLRA 1969 – the presumption is now on civil standard of proof only – it’s rebutted if “more probable than not” – that he is not the father.

Parental Responsibility

• Rights and duties arise from “parental responsibility” not “parentage”

• Not every “parent” has “parental responsibility”

• Not everyone with parental responsibility is a “parent”

• Par resp includes rights and duties – but does not necessarily mean you have day to day care of the child

Parental Responsibility

• s3(1) Children Act 1989: • “In this Act 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”

• No detailed statutory definition, so it is essentially a common law concept.

• It is therefore necessary to examine previous cases to discover what actions have been thought to fall within the scope of parental responsibilities. There is a general consensus that PR includes the following:

Parental Responsibility – Rights and Duties

“Parental responsibility” includes “rights”:• Right to possession of the child – including the right to decide where the child lives• Right to choose name• Right to decide on education and religious upbringing• Right to discipline• Right to consent to medical treatment• Right to authorise the marriage of a child under the age of 18.• Right to make decisions of the child’s property. “Parental responsibility” includes “duties”: • The “duty” side is more general – to “care” for the child• The Scottish statute requires parents to “safeguard and promote the child’s health,

development and welfare.” • English common law would lead to a very similar result

Parental ResponsibilityThese rights are not absolute. The extent to which parents can impose their wishes on their child will depend on the age and maturity of that child. E.g. parents may hope that their children will adopt their parent’s religious beliefs and try to educate then to this end, but once the child reaches adolescence he may take a different view.

Gillick v West Norfolk and Wisbech Area Health Authority 1985 – it was decided that a child of sufficient maturity and understanding may give a valid consent to medical treatment without the concurrence of the parent; such a child is often referred to as ‘Gillick Competent’.

The court also has the power to overrule the parent’s decision if it deems that a particular course is in the best interests of the child. This was shown in Re A (a minor) (Blood Transfusion) 1993 where the court ordered a blood transfusion despite the parent’s refusal to consent on religious grounds.

Who has parental responsibility?

• CA 1989 s2(1) Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child.

• This will not terminate even if the marriage is ended by divorce.

• If the parents are not married at the child’s birth, the mother alone acquires parental responsibility automatically.

Parental Responsibility

• Unmarried father:• Children Act s4(1) Where a child's father and mother were

not married to each other at the time of his birth, the father shall acquire parental responsibility for the child if—

• (a) he becomes registered as the child's father under any of the enactments specified in subsection (1A);

• (b) he and the child's mother make an agreement (a “parental responsibility agreement”) providing for him to have parental responsibility for the child; or

• (c) the court, on his application, orders that he shall have parental responsibility for the child.

Who has Parental Responsibility?

In S v R (Parental Responsibility) 1993, the court stated that the matters to be considered before granting a parental responsbility order to a father are:

1. The commitment shown towards the child by the father.2. The degree of attachment between the father and child; and3. The father’s reasons for applying for the order.

The Welfare Reform Act 2009 attempts to ensure that the names of both parents should be recorded in all but exceptional circumstances, which will increase the number of fathers with parental responsibility.

Who has parental responsibility?

However, even where these conditions as mentioned in S v R are satisfied, the court will not necessarily make an order.

In Re L (Contact: Genuine Fear) 2002, a case that concerned a father’s application for parental responsibility as well as contact, the court refused to grant a parental responsibility order even though it accepted that the conditions in S v R were satisfied. This was due to the mother’s genuine fear of the father, the resulting unlikelihood of the parties ever being able to agree on decisions relating to the child, and the possible harm to the child if the mother were caused distress.

Similarly, in R v E and F (Female Parents: Known Father) 2010, the court refused to make a parental responsibility order in favour of the biological father of the child. The reason was that the child looked on his mother and her lesbian partner as his core family, and this stability and certainty should not be disrupted.

Married and Unmarried Fathers

There is a clear difference between the positions of these two statuses. In B v United Kingdom [2000] the ECHR declared that there was an objective and reasonable justification for this, given the wide range of possible relationships between the unmarried father and his child.

It should be noted, however, that in Sabin and Others v Germany [2002] the court declared that ‘very weighty reasons would have to be put forward to justify domestic laws that discriminated between unmarried and married fathers’ rights’

Who has Parental Responsibility?

Although PR generally lies with the child’s natural parents, other persons may acquire parental responsibility too.

(a) A step parent can acquire PR by agreement with the other parents (or atleast those who have PR) or by order of the court. The same facility now exists for the civil partner of a parent.

Who has Parental Responsibility?(b) A guardian whp has been appointed to take care of a child after the

death of the child’s parent will have PR.(c) Making a residence order in favour of a person confers them to PR.(d) Persons who adopt a child acquire PR for a child (and the PR of the

birth parents is extinguished)(e) A person caring for the child as a special guardian will have potential

responsbility and may exercise it to the exclusion of anyone else with PR, although the original parents will retain PR. Special guardianship orders were conceived as an alternative to adoption: they provide greater security than fostering arrangements without breaking all of a child’s ties with his parents as an adoption order does.

(f) A local authority acquires limited parental responsbility when a child is taken into care.

Parental Responsibility

• Several people can simultaneously have par resp – so cannot all have an unfettered autonomous right to decide issues concerning the child

• CA 1989 s2(7) – par resp is joint and several – • 2(7) 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

• This is convenient in an emergency but not where the parties do not get on.