3. Parental responsibility

Children Act 1989, section 3(1)

'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'.

Here is a list of some of the rights a parent with responsibility has, although this is, no doubt, an incomplete list:

- the right to make decisions about the child's education;

- the right to 'possession' of the child - it is an offence to remove a child from a parent without lawful authority;

- the right to choose a child's religion;

- the right to consent to medical treatment for a child;

- the right to consent to adoption;

- the right to choose a child's name;

- the right to apply for court orders in respect of the child.

Reading:

Re S (Parental Responsibility) [1995] 2 FLR 648

Concerning: when an unmarried father should be given parental responsibility

Facts

The mother and father were unmarried but had cohabited and raised child S. They separated and the father sought contact with the child and a parental responsibility order. The mother opposed the application because the father had recently been convicted of possessing obscene paedophilic literature.

Legal principle

Parental responsibility was a status which acknowledged the man as a father of the child who was committed to her. When considering an application for parental responsibility, the court should remember that parental responsibility did not give a right to interfere in day-to-day matters, and if there were concerns about its misuse, orders under section 8 of the Children Act 1989 could restrict its use. The parental responsibility order would inform the child that her father cared for her. In this case the father should be granted parental responsibility as he had shown commitment and attachment to the child.

Af v. M (Parental Responsibility) [1999] 2 FLR 737 Concerning: when an unmarried father can be granted parental responsi­bility

Facts

The unmarried father of a child suffered from learning difficulties and his mental state was worsened by a motorcycle accident. This left him with severe brain damage and he was liable to violent outbursts. He applied for parental responsibility of the child.

Legal principle

His mental condition meant that he lacked the capacity to exercise the rights, responsibilities and duties associated with parental responsibility and so he should not be granted it, even though he demonstrated attachment and commitment to the child.

Reading:

Problem area

Section 2(7) of the Children Act 1989 appears to suggest that a parent with parental responsibility can act alone and need not consult with anyone else. However, the courts have not interpreted the law in that way. They have said that over fundamental important issues there should be consultation. They have not produced a definitive list but they include decisions over education (Re G (Parental Responsibility: Education) (1994); circumcision (Re J (Specific Issue Orders: Child's Religious ringing and Circumcision) (2000)); and changing a child's name (Dawson v. Wearmouth (1999)). The conflict between the wording of the statute and the views of the courts is puzzling.

Who gets parental responsibility?

All mothers get parental responsibility automatically. Not all fathers do. There are some who get parental responsibility automatically. They are:

- all fathers married to the mother of the child;

- all fathers registered on the birth certificate of the child (section 4(1)(a), Children Act 1989).

If the father does not get parental responsibility automatically, he can take steps to acquire it in the following ways:

- he can enter a parental responsibility agreement with the mother (section 4(1 )(h) I he can apply for a parental responsibility order (section 4(1 )(c), Children Act 1989);

- he can apply for a residence order from a court;

- he can apply to adopt the child.

Seminar 5

REVISION CHECKLIST

What you need to know:

- The difference between being a parent and having parental responsibility

- The definition of mother

- The definition of father

- The law regarding parenthood in cases of assisted reproduction

- The law on surrogacy

- The meaning of parental responsibility

- The law on who gets parental responsibility.