Sadly, if a relationship has broken down, and where there are children, a client’s first question is often what are their legal rights and responsibilities for their family? writes David Hodgson, a Partner in our Family & Divorce team.
Good Divorce Week takes place between 29 November – 3 December and this year’s theme is Parenting Through Separation.
Resolution is leading this campaign which is a group of 6,500 family law professionals who work to a code of practice, and are committed to promoting a constructive approach to family issues that considers the needs of the whole family.
As Resolution members, our family lawyers are pleased to support this campaign and connect with like-mind professionals who are similarly committed.
If there’s an acrimonious stand-off with the other parent of their child, 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.
A mother automatically has parental responsibility for her child from birth. Fathers have parental responsibly if they are married to the child’s mother when the child is born.
An unmarried father can get parental responsibility for his child in 1 of 3 ways:
- From 1 December 2003, by jointly registering the birth of the child with the mother and being named as the father on the child’s birth certificate
- getting a parental responsibility agreement with the mother
- getting a parental responsibility order from a court
Parental responsibility
The Children Act 1989 states that ‘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”.
Although the definition does include “rights”, 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 they live, where they are educated and consenting to any appropriate medical treatment.
The exercise of PR can sometimes cause conflict between parents, as they may disagree as to how it should be exercised. There is no trump PR between parents and there is very little guidance about when people who share PR can act on their own, and when they should act in consultation or in agreement with anyone else who has PR.
A court application can be made for a “specific issue order” or “a prohibited steps order”. A specific issue is an order deciding a specific issue concerning the exercise of parental responsibility whereas a prohibited steps order will prevent a parent exercising parental responsibility in a particular way.
However, the Courts will not want to be involved in what they perceive to be trivialities. They do not like to interfere in decisions relating to children unless it is absolutely necessary. Therefore, if the exercise of parental responsibility relates to day-to-day decisions regarding a child, the Court will not wish to be involved and they are becoming increasingly hostile to those parents who attempt to involve them in this way. The exercise of parental responsibility in respect of these issues will often be undertaken by the parent with care.
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 but clearly there will be occasions when they expect to be involved over disagreements as to the exercise of PR and those they don’t.
We must look to the case law for guidance as to the court’s attitude. You may have seen some cases making headlines involving whether a child should be immunised, sterilised, or circumcised. You might have also seen cases in the news relating to religion, 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. These are clearly important issues upon which a court is prepared to adjudicate.
Everyday decisions – when do you have to consult the other parent?
Although each case will depend on its own facts, generally 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
- Attendance at school functions and parents’ evenings.
There are some decisions where arguably there is no requirement for consultation, but the other parent should be notified. These are:
- 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 issues, albeit not definitive, where the courts will usually require all people with parental responsibility to make in consultation with one another. If there is a disagreement, they will not expect a parent to act unilaterally and expect a court application to be made and adjudicated upon before any changes are made:
- Selection of the school that the child is to attend
- The child’s living arrangements
- 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
- 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 this is not possible and we then turn our attention to assisting them in getting to a solution that works for them and for their children, 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.
Our Family lawyers have the knowledge and experience to guide you through these challenging times and have rankings in the Legal 500 and Chambers & Partners for their expertise.
If you need some advice and support – during Good Divorce Week or at any time – please get in touch via family@bishopandsewell.co.uk or call us direct on 020 7091 2869. We are here for you.
The above is accurate as at 02 December 2021. The information above may be subject to change during these ever-changing times.
