1. Parental responsibility (PR) is a creation of statute. Section 3 (1) of the Children Act 1989 ('CA 1989') reads:
'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'
2. This definition has been described as a 'non-definition'. It is unhelpful and self-referential in its formulation. The Law Commission rejected as impractical a proposal that parental rights and duties should be listed. The rational being that a comprehensive list of incidents would become outmoded and, would need to change to meet differing needs and circumstances, and would vary depending upon the age and maturity of the particular child. In essence, specificity has been sacrificed to pragmatism and flexibility, with a notion that it can evolve and adapt to changes in social circumstances.
3. PR is different from 'parenthood'; PR has to be acquired, whereas 'parenthood' arises from the facts. It is from PR not parenthood that all rights and powers in relation to a child come from.
Scope of Parental Responsibility changes
4. The Introduction sets out that the choice of the words 'parental responsibility' emphasizes 'that the duty to care for a child and to raise him to moral, physical and emotional health is the fundamental task of parenthood and the only justification for the authority it confers'.
5. The CA 1989 follows the principles of upheld in the earlier case of Gillick v West Norfolk and Wisbech AHA [1986] AC 112, HL 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...Parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child, and towards other children in the family.'
6. The exercise of PR can be limited both by the child (upon reaching Gillick competence) and by the state (statutory restrictions, e.g. in relation to education).
Court Orders
7. All these PR 'rights' are subject to control and restriction by a court where this is judged to be in the best interests of the child. Principally through:
a. Prohibited steps orders ('PSO') – to prevent any 'step which could be taken by a parent in meeting his PR for a child'; and
b. Specific issue orders ('SIO') – to determine 'a specific question which has arisen, or which may arise in connection with any aspect of PR for a child'
8. PR powers and duties can be discharged or varied by court order made with respect to the child under CA 1989. PR does not empower its holder to disobey a court order (section 2 (8) CA 1989). A court order trumps PR.
Parental Responsibility
9. In short, PR encapsulates all the decision making power and authority that parents' need to provide effective long-term care for a child. Generally, these fall into either (1) Possession; (2) Upbringing; and (3) Protection. To put 'meat to the bone', there is a frequently cited list by Gillian Douglas and Nigel Lowe in Bromley's Family Law (10th Ed.):
a. Bringing up the child;
b. Having contact with the child;
c. Protecting and maintaining the child;
d. Disciplining the child;
e. Determining and providing for the child's education;
f. Determining the child's religion;
g. Consenting to the child's medical treatment;
h. Consenting to the child's marriage;
i. Consenting to the child's adoption;
j. Vetoing the issue of a child's passport;
k. Taking the child outside the UK and consenting to emigration;
l. Administering the child's property;
m. Naming the child;
n. Representing the child in legal proceedings;
o. Disposing of the child's corpse;
p. Appointing a guardian for the child.
Multiple Parental Responsibility Holders
10. PR may be held by more than one person in respect to a child at the same time (sections 2 (5) and 2 (6)). Where there are multiple PR holders, any PR holder may act alone and without the other (or others) in meeting that responsibility, unless any enactment requires the consent of more than one person in a matter affecting the child (section 2 (7)) – e.g. section 13 (1) (a) change of surname, and (b) removal out of UK (for over one month) where residence order in force.
11. Parents should not interfere with the day to day decisions of another parent when that other parent is caring for the child. This is the case whether the child is with that parent under an informal agreement or a residence / contact or shared residence order. Such micro managing is not appropriate. For the purposes of contact say, a residence parent might be entitled to know the non-resident parent's address, but not where they go out during the day or what activities they are doing. In A v A [2004] 1 FLR 1195 Wall J said:
'...it is a basic principle that, post separation, each parent with parental responsibility retains an equal and independent right and responsibility to be informed and make appropriate decisions about their children. However, where children are being looked after by one parent, that parent needs to be in a position to take day to day decisions that have to be taken while that parent is caring for the children. Parents should not be seeking to interfere with one another in matters, which are taking place while they do not have care of their children. Subject to questions which are regulated by court order, the object of the exercise should be to maintain flexible and practical arrangements whenever possible.'
12. Where there are multiple PR holders, this raises questions:
a. When is there a duty to consult in advance? and
b. When is the duty to notify in advance or after the event?
13. In A v A [2004] 1 FLR 1195 Wall J appeared to approve for general application 'a schedule of items in relation to the exercise of parental responsibility, identifying those items which required mutual consultation and those which could be exercised unilaterally', describing it as 'an extremely useful document, and attach a copy of it to this judgment.' That schedule is provided overleaf and seems to be the best indicate available of what the court expects. Indeed this schedule particularly assisted Hedley J in T v S (Wardship) [2012] 1 FLR 230, 234, and was imposed on the parties under PR delegated under Wardship.
Responsibilties/Powers from the Fact of Care
14. There is a concept or role which exists where a person cares for a child but does not have PR for that child. Section 3 (5) CA 1989 states that 'a person who (a) does not have parental responsibility for a particular child; but (b) has care of a child may (subject to the provisions of this Act) do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child's welfare'.
Schedule of Items in relation to the Exercise of Parental Responsibility
1.Decisions that could be taken independently and without any consultation or notification to the other parent:
• How the children are to spend their time during contact
• Personal care for the children
• Activities undertaken
• Religious and spiritual pursuits
• Continuance of medicine treatment prescribed by GP
2. Decisions where one parent would always need to inform the other parent of the decision, but did not need to consult or take the other parent's views into account:
• Medical Treatment in an emergency
• Booking holidays or to take the children abroad in contact time
• Planned visits to the GP and the reasons for this
3. Decisions that you would need to both inform and consult the other parent prior to making the decision:
• Schools the children are to attend, including admissions applications. With reference to which senior school [the child] should attend this is to be decided taking into account [the child's] own views and in consultation and with advice from her teachers.
• Contact rotas in school holidays
• Planned medical and dental treatment
• Stopping medication prescribed for the children
• Attendance at school functions so they can be planned to avoid meetings wherever possible
• Age that children should be able to watch videos. i.e. videos recommended for children over 12
NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.