Often, when clients come to see me they want to talk about their “rights” when it comes to their children. This is often because they are involved in an acrimonious stand-off with the other parent of their child, and it can become difficult to disentangle the feelings they have for their ex-partner, from what is best for their child. Our law has defined a term called “parental responsibility” (rather than “parental rights”) because it is more appropriate to place the emphasis on the responsibilities rather than the rights which parents often wish to forcefully assert.
In terms of the Children Act 1989, ‘Parental Responsibility’ (“PR”) consists of “…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”. You will note that the definition does actually include “rights” but the emphasis is on what responsibilities parents have towards their child when they make decisions about that child’s property and welfare. This includes, but is not limited to, the child’s religion, where he lives, where he is educated and the appropriate medical treatment for him.
Parents, who were married to each other on the date the child was born, both have PR for that child. You can imagine that the exercise of PR can sometimes cause conflict between those parents even if they are not separated, and especially if their relationship with one another is not good, or if they have separated in difficult circumstances. There is very little guidance in our legislation about when people who share PR are able to act on their own, and when they must act in consultation or in agreement with anyone else who has PR.
There is guidance in our case law, but even so, each case will be decided after considering its own particular facts. Our Courts encourage parents to have respect for one another and to ensure that the rights of the other parent are respected for the benefit of the child. The Courts do not like to interfere in decisions relating to children, unless it is absolutely necessary to protect the child. So, you will have seen some cases involving whether or not a child should be immunised, sterilised or circumcised, making headlines. You might have also seen cases relating to religion in the news, especially where there is a difference of religion being practised by each of the parents, and they cannot agree which religion the child should follow (see below).
Everyday decisions – when do you have to consult the other parent?
There are certain basic everyday decisions that can be made without notifying or consulting with the other parent or holder of PR. Examples of these are:
- What activities the child undertakes (e.g; ballet or chess)
- How the child spends his time generally – we quite often see differences in parenting styles in this category so one parent might feel that the child should enjoy less screen time and more time pursuing outdoor activities
- Routine discipline – this will include setting boundaries but will not include physical chastisement
- Personal care of the child such as washing, dressing, grooming and feeding
- Routine medical check-ups
- Generally participating in religious and spiritual pursuits
When the parents who share PR follow different religions, generally it is thought that it benefits the child to have the opportunity to learn about and experience both religions, but occasionally this causes conflict, and a Court is called upon to decide what is in that particular child’s best interests. As you can imagine this can be a very emotive topic which our courts are often called upon to adjudicate.
- Attendance at school functions and parents’ evenings
There are some decisions where there is no requirement for consultation but the other parent should be notified. These are:
- Holiday bookings and taking the child abroad during school holidays or agreed contact time
- Planned visits to a GP and the reasons for this
- Change of address within the local area that does not destruct contact arrangements nor require change of school
- Medical treatment in an emergency
- Changes in living arrangements including a change to people that are living in the same household
Decisions that require consultation
The following is a list of decisions that require all people with parental responsibility to make in consultation with one another.
- Selection of the school that the child is to attend
- Applications for authorised absence from school and the reasons for this
- The child’s living arrangements during the school holidays
- Any medical treatment beyond routine check-ups
- Circumcision, sterilisation and immunisation require consent from all parties who have PR, or an order from the Court
- Terminating prescribed medication
- Surprisingly, the age at which the child should be able to watch videos recommended for children above the age of 12 and 18. There was actually a case concerning this issue called A v. A which was heard in 2004
- Consenting to the marriage of the child but only if there is no child arrangements order
- Change of the child’s surname
- Relocation to another part of England and Wales or abroad
In general solicitors should do their best to encourage the parents to work together and co-operate. Sometimes we are successful at persuading them, and sometimes we are not, and we then turn our attention to assisting them in getting to a solution that works for them and for their children and preparing their case for court in the most constructive way possible. As you can see there are many areas in which possible disputes can arise especially when tensions are already running high between the parents who are under a considerable amount of strain during or after a difficult separation.
If you have any questions about any of the issues raised in this article, please contact Louise Barretto, a Partner in our Family team, on direct dial 020 7091 2869 or by email firstname.lastname@example.org or alternatively, in relation to family matters more widely.