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Parental Responsibility (3.2) - Coggle Diagram
Parental Responsibility (3.2)
Introduction
What is significance of parental responsibility?
Parenthood has begun to supersede marriage as the foundation of 'the family'
PR is a significant in reflecting the realities of the human condition, i.e. 'reflecting the essence of the relationship of parent and child'
It is fundamental in establishing the duties owed by the parent to the child; exists for the benefit of the child, not for the benefit of the parent(s)/adult(s)
It provides an insight into the value and principles that underpin family law:
political and social views of parenthood
expectations of care and support towards children
policy considerations
Re H-B (Children) (Contact: Prohibition on Further Applications) [72]:
'is more, much more, than a mere lawyer's concept of a principle in law. It is a fundamentally important reflection of the reflection of the realities of the human condition, of the very essence of the relationship of parent and child'
Legislation: Children Act 1989
Defines 'the rights, duties, powers and authority' held by adults in respect of particular children and their property (S.3(1))
Legal parenthood is restricted to a maximum of 2 individuals, parental responsibility has no limit on the number of people who might hold PR at any one time (S.2(5))
A person might have PR for a child but not be their legal parent; and a legal parent might not have PR
Permits specific adults to make decisions in relation to a child's upbringing e.g. where the child should live, religious upbringing, education, medical treatment
'Rights, duties, powers and authority'
Gillick v West Norfolk and Wisbech AHA and Dept of Health and Social Security
[1986]:
'parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as the enable the parent to perform his duties towards the child, and towards other children in the family' [112]
'a person with parental rights is legal empowered to take action in respect of a child in exercise of those rights' [4.19]
How does PR differ from legal parenthood?
Family Law Act 1986; HFEA 1990, HFEA 2008:
Legal parenthood can only be held by 2 individuals at a time
It is permanent and has legal consequences throughout life and confers a core body of rights and responsibilities that result from the legal status of being a child or a parent:
Legal recognition of familial relationships
Duty to financially maintain a child
Entitlements on intestacy
Citizenship rights
Parental responsibility
PR versus Parenthood
Applies to those with legal parenthood and/or non-parents with PR:
Right to make an application under S.8 Children Act 1989 (specific issues, prohibited steps, and child arrangements)
Right to resasonable contact with a child in care under S.34 Children Act 1989
Right to be consulted by a local authority who is looking after a child in pursuant to a care or interim order or S.20 arrangement
Duty to ensure that a child receives education
Applies only to those with legal parenthood:
Oblgiation to financially support the child, whether or not they have PR for the child
Right to succession the intestacy rules, or to make an application under the Inheritance (Provision for Family and Dependants Act) 1975
How legal parenthood can be conferred
Automatically conferred
Granted/acquired:
Being named on the birth certificate
Adoption Proceedings (Adoption and Children Act 2002)
Parental Order (HFEA 2008)
S8 CA 1989 child arrangements - live with' order
Special guardianship (S14 CA 1989)
Parental responsibility agreement or parental responsibility order (S.4 CA 1989)
Who has PR
At birth:
Gestational mother (S.2)
If a child's parents are married/CP at the time a child is born, both of them will automatically acquire PR (S.2(1))
Granted/acquired:
Father who is unmarried at time of birth but is named on the birth certificate (S.4)
If unmarried at the time of the birth and the parents later marry, the child is legitimated by this latter marriage (S.2 Legitimacy Act 1976 and S.1(3)(b) Family Reform Act 1987 - father then falls into S.2(1) Children Across 1989 and obtains PR because of that)
Adoptive parents
Parents who have been awarded a parental order (S.54 HFEA 2008)
2nd female parent who acquired legal parent via S.43 (unmarried) of HFEA 2008
Father who acquired legal parenthood via S.36 (unmarried) HFEA 2008
By those who apply for a child arrangements order as a person with whom the child will live/spend time
Local authority, e.g. interim order, care order, emergency protection order
Special guardian (S.14(c))
Guardian appointed via a will, or appointed by the court (S.5)
Rules for PR
Application for PR
Court is guided by welfare checklist and 3 considerations identified by Balcombe LJ in
Re H (Minors) (Local Authority: Parental Rights)(No.3)
:
The
degree of commitment
the applicant has shown to the child
The
degree of attachment
between the application and child
The
reason
the applicant is applying for the order
Statutory presumption of involvement applies to any application
Objections to the making of an PR order
Current person with PR argues that applicant is likely to use PR to disrupt the child's life rather than benefit it
Applicant's current conduct demonstrates that if they were to receive PR, they would misuse it;
If the purpose in applying is 'demonstrably improper and wrong' it can be refused, or its use restricted
Exercising PR
A person with PR cannot surrender or transfer any part of their PR (S.2(9)), but they can delegate the exercise of their PR to another person
Any person who does not have PR but who undertakes a parenting role/takes care of their child is able to do 'what is reasonable in all circumstances of the case for the purpose of safeguarding or promoting the child's welfare' - S.3(5)
Exceptions to unilateral exercise of PR:
Where a S8 'live with' order is in force, no person may change the child's surname or remove the child from the UK
Where a local authority has PR for a child (S.31 care order), the LA can 'overrule' the parents, but can't rename the child, change the child's religion, or consent to serious medical treatment unilaterally without a court order
Limits of PR
Gillick v West Norfolk & Wisbech [1986]:
A child' autonomy to make their own decisions
'parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable tof making up his own mind on the matter requiring decision
Can PR be rescinded?
Principles:
(1) PR is inalienable unless parenthood itself is lost via Adoption (S.46(2) Adoption and Children Act 2002) or Parental Order (S.54 HFEA 2008)
(2) PR can be removed by the court
And so, different rules for
Group 1: fathers/second female parents who where married/CP, who have PR from birth, and
Group 2: Unmarried/not-CP fathers and second female parents (Children Act 1989 S.4(2A)/4ZA(5))
Re A (Parental Responsibility) [2023]:
Held: The fact that S4(2A) Children Act 1989 empowers the court to revoke PR for an unmarried, but not a married father, was not incompatible with ECHR Art 14 (read with Art 8); difference in treatment is justified by the 'legitimate aim of prioritising marriage and civil partnership over less formalised partnerships and maintaining the principles that a married father should have irrevocable parental authority and responsibilities'
Re C (Children: Acquisition and Discharge of Parental Responsibility by an Unmarried Father) [2023]
Held: Made a declaration of non-parentage re: a man who gained PR for a child by being registered as the father but, was later established that he was not the biological father. His registration had been based on the rebuttable presumption that he was the biological father, which was rebutted