Parental rights and responsibilities

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Q2 Parental rights and responsibilities. Explain what they are, how they are acquired and how they may be regulated or lost in a legal contest. And how the relevant criteria are interpreted by the courts. Use relevant case authorities.

Part 1 of the Children’s (s) Act 1995 – A “child” is generally defined as someone under 18yrs old.

Parental responsibility is the term used to describe the legal duty that a parent has to their child. While biological mothers automatically have parental responsibility, not all biological fathers do. Those who are not automatically given parental responsibility need to apply for it or risk losing their say in how their child is raised. Having parental responsibility gives a father the right to contribute to decision making regarding his child’s future.

The rights and responsibilities are in S1 of the act which gives the following responsibilities; subject to 3(1) (3) A parent has the Responsibility to; Safeguard and promote child’s health and development. To provide in an appropriate manner to development in direction and guidance. If the child is not living with parent, to maintain personal relations and direct contact, act as child’s legal representative but only in interest of child. (Health, education discipline etc)

Fathers who do not have parental responsibility still have to pay child maintenance. Having parental responsibility also does not give someone greater powers over the other parent of the child.

How they are Acquired – 3 types; Automatic, Agreement and court order.

Automatic – child’s mother S3. All mothers at birth. Father but only if married at time of conception or subsequently S3 (b) & Non martial father who registers as such S3 (b) (ii) only applies when man registers on or after 4th may Family law (s) act 2008.

Human Fertilisation and Embryo Act 2008 – Since 2009 S42, civil female partner of birth mother and a women who is a parent by virtue of act = parent. Adoptive parents who jointly adopt a child both have parental responsibility. Neither parent loses parental responsibility through divorce

Agreement – If the mother has not been previously deprived of some or all of her PRR she may enter an agreement with i) father under which he is to obtain PRR if he had married the mother. S4 Children (s) act 1995 ii) with child’s second female partner which she would have obtained if she was spouse or CP s4 CSA 1995. However, NO agreement with mother and second female partner until it is prescribed from and registered in books of council and session. On a side note, if you are interested in SEO, check out Dynamic Launch in Glasgow

Court order– The father or second female partner could apply to the sheriff court or Court of Session under S11 of the children (s) act 2008 for an order giving them PRR. Court will determine by factors; Decree of commitment, attachment, motives/reasons, and child’s best interest.

Regulated/Lost – whether a S11 order is sought in an independent action or as an ancillary, the court has the power to make an order in relation to PRR as it sees fit,

S11 (c) Residence Order – where child is under 16 is to live. Used when H and W divorce and court wishes to regulate residence.

S11 (d) Contact Order – order regulating maintenance of personal relations to child and direct contact with child under 16 and with parent who isn’t living with child

Porchetta v Porchetta 1986 – Divorced, Mrs P refused access to child. Held his rights are not automatically enforceable he had to prove it would be in the welfare of child to grant order

White v White 2001 – Separated, kids with mother. Father had contact until new relationship then was refused. Father challenged it “Article 8 of EHCR” not imposed properly. Held, contact reinstated.

Shields v Shields 2002Separated. Child with mother, and dad had contact. Mother was offered a job abroad but father refused her to leave with him. Child did not want to leave, court could only do what was in child’s best interest. Order denied from mother.

S11 (e) Specific Issue Order – Order regulating any specific questions to do with child’s property. (Religion education etc). Disputes are dealt with using this order. Failure to meet duty to educate child is an offence under Education (s) act 1980 S35. Child should have support from both parents. This order should have minimal effect on PRR. Court can ONLY make if satisfied it’s in best interest of child.

Re j 200 – father is Muslim and mother isn’t. Separated. Child with Mother. Father wanted son circumcised but mother refused. Father sought the S11 Order however, it was held that it was NOT in the child’s best interest. If both parents agreed it would be lawful.

3 criteria must be taken into account when making a S11 order;

  • welfare of child must be “paramount”,
  • only if it’s in the best interest of child and
  • takes into account the child’s view when making decisions.

The possibility of domestic abuse MUST be taken into consideration S7a+b under such provision the effect of abuse on both and child and carer must be considered. The child has the right to be protected from abuse or risk of abuse.