What is Parental Responsbility?

1. Family Law
Children Act 1989
Lecture 1
Shummi Shah
shummi.s@hotmail.co.uk

2. 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.

3. 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.

4. 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

5. 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.

6. 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

7. 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:

8. 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

9. Parental Responsibility
These 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.

10. 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.

11. 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.

12. 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;
and
3. 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.

13. 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.

14. 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.

15. 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’

16. 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.

17. 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.

18. 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.