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Parental responsibility, in simple terms refers to the legal right of parents to decide for their children in respect of a plethora of aspects concerning their lives, including the children’s education, religion, ,edical treatment, administration of property and so on, until the child hits the majority age. There are countless perspectives on what parental responsibility actually means when granted upon parents. For some, it may mean nothing but pure burden while for others it may be viewed as an opportunity to create an asset for the betterment of the world, or something else entirely.
In the United Kingdom, the legal definition of parental responsibility is highlighted in s.3(1) of the Child Act 1989 (CA 1989) as “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”. Those rights, powers, responsibilities, as well as duties owned by person with parental responsibility (hereinafter referred to as PWPR) are conventionally as follows;
Nelson Mandela once said “Education is the most powerful weapon which you can use to change the world.”, which is essentially why children should be educated. This is supported by the law, particularly s.36 of the Education Act 1944 (EA 1944), which requires PWPR, as part of their duty to ensure that their children are provided with the necessary education. This is especially for children of compulsory school age, that is children aged 5 to 18 in the UK. Failure to comply would amount to a criminal offence, as stipulated under s.39 EA 1944
Under the common law, PWPR have the legal right to decide on the religious upbringing of the child. Hence, a child is to follow the religious route as decided by PWPR, unless that very decision is contrary to the interest and welfare of the child. This can be well-illustrated by Re G (Education: Religious Upbringing)(2012). On the facts, after the separation of the parents of the children, they had conflict on the choice of religious school their children should attend. The court held in favour of the interest of those children, hence following their mother’s proposed school, which would provide them with greater education opportunities.
As one of the methods to discipline children, and if necessary, PWPR usually opt for actions which amount to battery and assault, which technically are one of their rights as part of their parental responsibilities. Any method that is more extreme and would cause great harm or injury to the child would result in the PWPR to be liable for crime. For example, in R v Harris & Harris (1993), the parents committed manslaughter on their daughter when she refused to go for her diabetes treatment. They were both criminally liable for the offence committed.
This right essentially concerns the right to custody of the child in question. However, this right which allows for a parent to live and have access to the kid is not absolute in nature, since the court would assess in consideration of the welfare of the child, where in some circumstances, it would not be wise to grant this right to the PWPR particularly in cases of ‘significant harm’, as per s.31 CA 1989. Without significant harm being established, the local authority does not have the right to detain the child against the PWPR’s wishes, as under s.20(8) CA 1989. Apart from that, this right may cease to exist in cases where some other has been taking care of the child for a long period.
In Re Agar Ellis, the father had custody of the child, who personally preferred to stay with her mother and practices her mother’s religion. When she turned 16, she applied to be permitted to stay with her mother however, her application was rejected. The is as the court will usually not interfere the common law right of PWPR unless it would be detrimental and unreasonable for the welfare of the child, which in this case, it was not.
Although PWPR may give consent or decide in respect of medical treatment of a child younger than 16 years, they do not have such privilege when it comes to withholding medical treatment. This is the same for a child above the age of 16, where they have the statutory right to give consent for treatment, but not to withhold their consent. This is supported by s. 8 of the Family Law Reform Act 1987.
Regardless of the wishes of the child, the treatment that has been consented by PWPR will proceed if it is, especially for the best interest of the child. This is portrayed in the case of Re W (A Minor) (1992), where the court ordered for the treatment to be made for the 16 years old girl against her wishes, as it was for her best interest as well as for her safety. Plus, her refusal had stemmed from her condition of aneroxia nervosa, which had impaired her capacity to make an informed choice.
A child is legally incapable to administer their property until they reach the age of 18. Pursuant to s.3(1) CA 1989, PWPR have the powers and duties for the administration in relation to the child’s property, and under s.3(2), to such rights as the guardian of the estate would have had in relation to the child’s property. Technically, the guardian of the estate has power to control the income and personal profit to which the child is beneficially entitled, but not to receive property as he must account to the child. In Williams v Boulton (1948), PWPR do not have right over a child’s salary or wages.
The right of changing surname does not fall under s. 2(7) CA 1989, which in cases of a child with more than one PWPR, allow those respective PWPR to act alone in carrying out their duties. This is laid out in s.13(2) CA 1989 which prohibits the changing of the child’s surname during the operation of arrangement order, settling residence, unless the PWPR’s written consent or leave of the court have been successfully obtained.
This issue was dealt with in the case of Re B (1996). On the facts, the court refused to permit the change of surname of the three children to that of their stepfather, although it was genuinely those childrens’ wishes. The justification for this was the strong opposition from their natural father, and that it was not in the childrens’ best interest to completely cut off ties with their father.
One of the powers and rights of PWPR as under schedule 12 CA 1989, include giving consent to the child’s marriage in circumstances where the child is below 18, but above 16, that is the legal minimum age to get married in the UK. Where the court found unreasonable withholding of consent, especially in light of the welfare of the child, it may override that refusal.
Technically, this right is not automatically conferred upon PWPR although generally, as acknowledged by Lord Oliver, ‘a natural parent has a claim to contact with his or her child’ which will be taken into account by the court. In Re K.D. (1988), there was an attempt by the local authority to cut off parental contact with the child, in replacement to be cared under a wardenship. Lord Templeman in his judgment emphasized that ‘the best person to bring up a child is the natural parent. It matter not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered.’
Essentially, this right is not absolute in the sense that rather than having the PWPR representing the child, the court would allow a child to have his or her own legal representative to speak for himself or herself in court for any family proceedings, in light of the welfare of the child in question. This is as in Re D (A child) (2016), where Ryder J expressed that it is a fundamental principle of the English law that the child’s view be heard, otherwise s.1(3)(a) CA 1989 would be violated.
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