Parental responsibility

Parental responsibility is a key principle and key concept in child law. It permeates the Children Act [1] . This Act provides the statutory framework around which most of child law is based, and is the bedrock in which burgeoning ideas and principles relating to the upbringing of children are firmly rooted. Parental responsibility is defined in s.3 (1) of the Children Act to mean:

“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"

The emphasis on parental responsibility arose partly from Gillick v West Norfolk and Wisbech Area Health Authority [2] . Parental responsibility is therefore a concept which can be encapsulated in the notion that it is those with parental responsibility who have the power and responsibility to determine how a child is brought up. It gives those with parental responsibility the legal authority to make decisions about important aspects of your child’s life.

Parental responsibility can be obtained by more than just the one person via s.2 (5) and it does not go bad when somebody else acquires it, s.2 (6). Neither is it lost when the child goes into care. It only finishes when the child reaches an age of majority, if the child is adopted and in rare circumstances by a court order.

Parents are the first group in my evaluation the utility of parental responsibility for different holders of the status. In the scenario that the parents are unmarried than only the mother has parental responsibility, s.2 (2), but the father does have the opportunity to gain it.

Parents who had a marriage that was void have parental responsibility, via s.1 of the Legitimacy Act [3] , if at the time of conception/ or marriage (the one that is latest) either one of them thought that it was valid. Parents who also marry after their child’s birth are treated as though they were married at the time of birth therefore having parental responsibility via s.2 of the Legitimacy Act.

Having said this Parents’ without Parental responsibility will also have rights, even if they have no parental responsibility in law. Such parents have succession rights and can apply for orders under Part II of the act helping them potentially get residence and contact. Parents unconditionally have a right to reasonable contact with a child that might be in local authority care

Other people that can gain parental responsibility include a guardian, a local authority and a person who adopts the child.

In terms of exercising parental responsibility, this can be exercised jointly or separately as people with parental responsibility can act independent from one another unless the law states otherwise. Such decisions that might need both parents consent include removing the child from the UK, consenting to the child adoption, deciding about the Childs education, changing the Childs surname and consent to serious or irreversible medical treatment.

If consent from one has been refused and the other is adamant on a course of action than s.8 order will mean that the courts will resolve their dispute.

Unmarried fathers do not have an automatic parental responsibility arising out of being a natural parent. Until a court order is obtained than they are not subject to the exercise of others using parental responsibility on his biological child.

Resulting from a concern about lack of automatic parental responsibility for unmarried fathers, as well as injustices such as suffered in B v UK [4] , a compromise was reached whereby an unmarried farther would have parental responsibility if they registered the child’s birth with the mother. Once acquired, the farther will have the same rights as the mother, with the exception that his right can be terminated by the courts, so in a certain respect it can be seen how unmarried fathers are still discriminated against by the law.

Alternatively the unmarried farther could acquire parental responsibility by a parental responsibility order where he can apply to the court under s.4 (1) (c) for an order giving him parental responsibility. The child’s well fair is paramount to the court. Factors that the court will look at are the degree of commitment the farther has shown to the child, the degree of attachment between the two, and the father’s main reason for applying for the order. Additional factors however may also be taken into account note Re H (Parental Responsibility) [5] .

Other ways in which one can acquire parental responsibility is by becoming registered at the birth as the child’s farther as via ss.4 (1) (a) and 4 (1A) and unmarried farther has parental responsibility for his child if he is registered with the child’s mother on the birth certificate.

Parental responsibility can also be achieved by agreement with the child’s mother as a unmarried farther can enter into a parental responsibility agreement with the mother by way of s.4 (1) (b). The agreement is made by a signed form from both parties which are witnessed then registered in the principal registry of the Family Division.

Step parents can also acquire parental responsibility. By way of s.4 A, a step parent can acquire parental responsibility by making a parental responsibility agreement or a parental responsibility order, both which were previously discussed.

Having established how one would get parental responsibility, evaluation for holders of its status is that they have the right to physical possession of that child, contact with the child, decide on the child’s education, choose the child’s religion, consent to medical treatment of the child, choose the child’s surname and register the child’s birth, consent to the child’s adoption, discipline the child, a right to appoint a guardian for the child, and bring legal proceedings in respect of the child.

These above stated rights are not absolute and are dependant to the fact that the child’s welfare is paramount, if this is not the case parental wishes can be overridden.

The Most important of the stated parental rights is that of a right to the physical possession of the child. The restrictions put in place via s.13 (on factors that need to be in mind when taking a child out of the UK) shows in itself that parents have rights to physical possession.

Another important right comes by way of a right to have contact with the child. s.8 contact order and the presumption of contact when a child is in the hands of an authority show that parents have a right to be in contact with their children, but such a right can never be called absolute because it will always be subject to welfare of the child.

A right to decide on where the child has an education is of an importance because here the parents have a legal duty to ensure that a child aged between five and sixteen receives a full time education which is parallel to any special needs that they might have. Via s.7 of the Education Act 1996 also means that the parents can lawfully educate their children at home provided that it is efficient and suitable. It is worth noting that failure to comply will result in prosecution.

Parents have a right to choose the child’s religion, at least until they are competent enough to choose their own. They also have the right to withdraw their child from other religious activities taking place. However parents’ wishes are not final, for instance if the child needs medical treatment than the parents’ wishes will be disregarded and what is best for the child will be done. Also where the child is above 16 but below 18 than those with parental responsibility must give their consent.

Although it is tradition for the child to take the fathers surname as their second name too, this is not compulsory. A parent can pick a surname however they need the written consent of all those with responsibility.

In regards to parents and children in terms of medical treatment, the Gillick case did not remove duty from the ones with responsibility; in fact the department of health stated that the doctors should act on the presumption of the parents. But the fact is that if a child is a mature man, as was the case here, than parental consent will not be needed.

If there is a dispute between parents and doctors about medical treatment of the child than the parent must bear in mind that as a doctor he/ she can override them as parental rights in medical matters are not the be all end all they are for instance in other matters. Doctors are hesitant to listen to parents on important medical matters for the reason that if they do fail to treat a child because of a parent’s defiance this may breach their right to family life under Article 8 of the Human Rights Act [6] .

The principles of dispute between doctors and parents come down to what are the best interests of the child, and where there is a very strong presumption to give treatment which would be considered late. Thus the courts have to sit on the fence and weigh up the pros and cons and what is in the child’s best interest note Re C [7] .

Such a concept as parental responsibility is important as minors and young children obviously cannot make decisions about their own upbringing because they lack the capacity to do so. In relation to older children, they may have the intellectual capacity to make decisions, but they are nonetheless likely to be dependent on adults to still provide them with certain necessities. It is for the reason that children, although they may know what they want, lack the maturity and wisdom to deal with the consequences that an adult can be put in charge of them.

Having said this, just because one has recognised those with parental responsibility have the right to control most aspects of a child’s life and how they are raised; it does not imply that the means used will always be right. This is because the basic principle of law is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child. Therefore it is clear that parental responsibility can be challenged, and even overridden in some circumstances, when parents and others with parental responsibility act in violation of this principle

UN Convention on the Rights of the Child states:

"The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents."