parental responsibility

Aims of Today

  • Discussion Topics:

    • The law concerning Parental Responsibility (PR)

    • The role of mediation in Family Law proceedings

  • Workshop Reference:

    • Prepare for Workshop 2

Parental Responsibility

  • Definition:

    • According to Section 3 (1) of the Children Act 1989, parental responsibility (PR) is defined as:

    • "All the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to the child and his property."

    • Explanation:

    • Parental responsibility involves the exercise of responsibility over a child.

    • Section 3 (5) CA 1989 states that a person without PR but caring for the child may act reasonably to promote and safeguard the child's welfare.

  • Remarkable Case:

    • Hewer v Bryant [1969] 3 All ER 578 states parental responsibility as “a bundle of powers” that enables decisions in a child's life, including but not limited to:

    • Religion

    • Education

    • Name

    • Medical treatment

    • Dynamics of PR:

    • Varies based on the child's age and maturity.

    • Legal rights cease at the child's 18th birthday, although control diminishes as the child grows older.

    • The right starts with control but transitions to advising the child.

Financial Maintenance and PR

  • Clarification:

    • PR does not require the provision of financial maintenance for a child.

    • Example: A person can have PR and pay nothing towards the child’s well-being or may not actively participate in their life.

  • Statutory Duty:

    • An unmarried father without PR is nonetheless required to maintain the child (Child Support Act 1991 s1).

  • Considerations for Discussion:

    1. What is the practical impact of a parent/carer not having PR?

    2. Who holds PR?

Who has Parental Responsibility?

  • Biological Mother:

    • Automatically has PR; cannot be removed or changed unless by court order.

  • Biological Father:

    • Does not automatically hold PR; can obtain it under several conditions specified in Section 2 and Section 4 of the Children Act 1989:

    1. Married to mother at the time of birth

    2. Registered on the birth certificate (post 1 December 2003)

    3. Parental Responsibility Agreement with the mother

    4. Court order (Parental Responsibility Order)

    5. Child Arrangements Order (named as the person the child lives with)

    6. Child Arrangements Order (named for contact with the child)

    7. Subsequent marriage to mother

    8. Appointed as child’s guardian after mother’s death

  • Other Female Parent:

    • Obtains PR under various conditions similar to the biological father, including civil partnership with biological mother or being married to her.

  • Step-Parent:

    • Can obtain PR through court order or parental responsibility agreement, Section 4A Children Act 1989.

  • Local Authority:

    • Obtains PR through various orders:

    • Care Order (s. 33 CA 1989)

    • Emergency Protection Order (s. 44 CA 1989)

    • Interim Care Order (s. 38 CA 1989)

    • Placement Order (s. 25 Adoption and Children Act 2002)

  • Guardian:

    • Holds PR when appointed by the court or as per a will following the death of all other individuals with PR (Section 5 CA 1989).

  • Adopter:

    • Gains PR upon the making of an adoption order (s. 46 Adoption and Children Act 2002); other PR ceases upon adoption.

  • Special Guardian:

    • PR takes precedence over others holding PR through a special guardianship order (s. 14C(1)(a) CA 1989).

Duration of Parental Responsibility

  • Ends when:

    • The child reaches 18 years old

    • The child dies

    • A parental order or adoption order is made

    • In the case of non-parents, when child arrangements order provisions end

    • For Local Authorities, with the ending of their respective orders.

Decision-Making with PR in Separated Parents

  • Case Reference: A v A [2004] EWHC 142 (Fam)

    • Involves separated parents lacking harmony.

    • Court intervention led to an agreed schedule where decisions are divided into categories:

    1. Independent Decisions:

      • Activities, personal care, religious pursuits, ongoing medical treatments.

    2. Informative Decisions:

      • Emergency medical treatments, holiday bookings without consultation.

    3. Consultative Decisions:

      • School attendance, GP visits, medication changes, school functions, age restrictions on films.

Best Interests of the Child

  • Key Takeaway:

    • Exercising PR should always be for the benefit of the child, supported by the principle from Gillick v West Norfolk (1985):

    • “Parental rights to control a child do not exist for the benefit of the parents. They exist for the benefit of the child…"

Parental Responsibility Orders

  • Application Eligibility:

    • Only specific individuals can apply:

    • Biological father

    • Spouse/civil partner of a parent with PR

    • Second female parent of a child

  • Welfare Checklist:

    • The court will consider welfare factors prior to granting a parental responsibility order.

Biological Fathers

  • Case Reference: B v UK [2000] 1 FLR 1

    • ECHR found no breach in unequal treatment of married vs. unmarried fathers regarding PR.

  • Three Material Tests:

    • Commitment shown towards the child

    • Attachment existing between father and child

    • Genuine motives behind the application for PR.

  • Financial Contribution:

    • Does not dictate PR eligibility; money concerns do not reflect commitment.

Refusal of Parental Responsibility

  • Court Precedents:

    • Rare for courts to deny PR; factors include abusive behavior or lack of contribution to the child's welfare.

  • Case Studies:

    • J-S (A Child) [2002]: Father was granted PR despite a history of intimidation due to proper attachment and commitment.

    • P (A Minor) [1998]: PR application denied due to the father's improper motives.

Amending a Birth Certificate

  • Process:

    • A child's birth can be re-registered to include the father, which supports acquiring PR.

Mediation

  • Importance of Discussion:

    • Recognized as a step for conflict resolution in Family Law.

  • Mediation Overview:

    • Section 10 (1) of the Children and Families Act 2014 mandates considerations for mediation.

    • Family Procedure Rules Practice Direction 3A outlines procedural guidelines.

Requirements and Exemptions for Mediation

  • Attendance Requirement: MIAM (Mediation Information Assessment Meeting) is compulsory for financial disputes in divorce matters.

  • Exceptions:

    • Domestic abuse allegations

    • Urgent applications related to safety

    • Past unsuccessful mediation attempts

Role of Family Mediators

  • Qualifications:

    • Must complete approved training and comply with the Family Mediation Council Code of Practice.

    • Accreditation required to sign court forms.

Mediation Meetings

  • Key Elements:

    • Agenda set by parties, legal advice can be sought, exploration of options, and summaries generated post-meeting.

  • Cost Considerations:

    • MIAM may cost £100; mediation sessions around £200 depending on eligibility for legal aid.

Benefits of Mediation

  • Advantages:

    • Greater lasting outcomes, focus on present and future, control remains with parties, less adversarial environment.

Conclusion and Next Steps

  • Prepare for Workshop 2 focusing on Divorce.

  • Future topics in Private Children's Law and Workshop 3 will continue to expand on these concepts.