| Family law |
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In the United Kingdom and the nations of the European Union,[1] parental responsibility refers to the rights and privileges which underpin the relationship between the children and the children's parents and those adults who are granted parental responsibility by either signing a 'parental responsibility agreement' with the mother or getting a 'parental responsibility order' from a court. The terminology for this area of law now includes matters dealt with as contact (visitation in the United States) and residence (see Residence in English law) in some states.
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Transcription
It's a sad fact that on average 42 percent of marriages end up in divorce and the main victims are the children. Today we are going to discuss various scenarios covering the law relating to the children of the family, and with me today is Karis Wookey, a solicitor in Howells and a specialist in children law. Karis, we're now going to run through a few scenarios covering parental responsibility. For my first example, a couple marries in 2000. They have a 10-year-old son and a 6-year-old daughter and twelve years later the parties separated. What is a typical arrangement for the children? Ideally, parents will come to an agreement at this point regarding where the children live and how much time the children spend with each parent. But what if they can't agree with these arrangements? There are circumstances where the mother would not agree to arrangement whereby the children would spend equal time with both parents. Say, for example, if her child benefits were reduced, if father formed a new relationship with another partner, or she may just be unreasonable. So what can he do, if his ex partner decides to reduce contact with his children? The first port of call is to seek legal advice. Here at Howells, we offer a 30 minute free consultation with a specialist solicitor. And there is no pressure to proceed after the initial interview? No, there's no pressure whatsoever to proceed and of course will be no costs involved. In our case study, the father has parental responsibility as he is married to the child's mother so he would be responsible for looking after the child, providing a secure and stable home environment, choosing educational needs and appropriate schools, choosing the child's name and consenting to any change of name, and agreeing to medical treatment. These are just a few examples of what having parental responsibility means. What would the first step be for the father to reinstate the original agreement or to gain more access to his children? Firstly, we would need to write to the mother setting out his proposals and requesting the previous arrangement be reinstated immediately. We would request the response from mother within 14 days and suggest that she seeks independent legal advice if she's unsure about the contents. So is the best case scenario that the mother responds and reinstates the previous arrangement? Yes, but if this doesn't occur or if she fails to respond then we would refer the matter to mediation. As of the 22nd April 2014 prior to making any application to court, a mediation intake assessment meeting known as MIAMS needs to have taken place. There are however some exemptions to this, such as domestic violence. Mediators are trained to help resolve a number of issues including children disputes. Who pays for this mediation? If one party is eligible for legal help then this will cover both parties. However, generally it is the person making the referral to mediation that will bear the expense usually ranging from 75 to 150 pounds plus VAT. If further sessions are required, then the fees will increase and these should generally be split equally between the parties. And what if mediation is unsuccessful? If mediation is deemed unsuccessful or unsuitable and no agreement can be reached, the next stage would be submitting an application to court, for a Child Arrangement Order. This order would define where the children live and who they spend time with. Our last case study featured a married couple. Let's discuss our next case study where the couple aren't married. Does the father have parental responsibility for the children? The law changed on the 1st December 2003. Prior to that even if a father is named on the Birth Certificate, if he is not married to the child's mother then he does not acquire parental responsibility. After the 1st December 2003, if the father is named on the Birth Certificate, he does acquire parental responsibility. So how does a father acquire parental responsibility? One option is for father and mother to sign a Parental Responsibility Agreement. This needs to be taken to the local family court and then lodged at the principal registry of the Family Division. The father will then acquire parental responsibility. But what if the mother refuses to sign the agreement? Then we would help the father to make an application to the court for a Parental Responsibility Order. In addition, we could also decide at this stage whether an application needs to be made to the court for a Child Arrangement Order. How would the Child Arrangement Order be judged? This depends on each individual case and the age of the children. However, the court will need to consider the welfare checklist which explains that the children's welfare is the paramount consideration. The court will also consider a number of factors and during the course of proceedings it is likely that parties will need to file statements setting out their case. How about if domestic violence has occurred during the course of the relationship? Say if the husband or partner was the perpetrator. Does this change matters in terms of funding and the courts stance? If the father has been violent towards the mother and he has been either cautioned, convicted or released on police bail within the last 24 months then the mother can technically be eligible for legal aid, dependent upon means also. Alternatively, if social services have become involved as a result of domestic violence and they've held a multi agency risk assessment conference the mother may also be eligible. Are there any other circumstances where a mother may qualify for legal aid? Yes, if mother has attended a health professional and they've confirmed in writing that she's attended as a victim of domestic violence then she could also be eligible for legal aid. Additionally, if she's attended a refuge or an association such as Women's Aid to seek help and assistance in respect of domestic violence, she could also be eligible. Finally, the court will want to ensure that the children are safe in father's care and protected from any domestic abuse. Thank you Karis, for some excellent advice. If you think that you would benefit from a free 30 minute initial consultation then please go to www.howellslegal.com to find your nearest local Howells branch
In European states
Scotland
In Scots law, issues relative to parental responsibilities are dealt with under the Children (Scotland) Act 1995,[2] which provides for the making of 'residence' (custody), 'contact' (access), and 'specific issue' orders. These may be applied for by anyone with an interest in a child, not merely parents.[3] Under section 1 of the 1995 Act, parental responsibilities are, where practicable and in the best interests of the child, to:
- safeguard and promote the child's health, development and welfare;
- provide the child with appropriate direction and guidance;
- maintain personal relations and direct contact with the child;
- act as the child's legal representative.
These responsibilities last until the child is aged 16, with the exception of the responsibility to provide the child with appropriate guidance, which lasts until the child is aged 18. Under section 2 of the 1995 Act those with parental responsibilities are given correlative rights to allow them to fulfill those responsibilities. These rights are:
- to have the child living with him or her or otherwise to regulate the child's residence;
- to appropriately control, direct or guide the child's upbringing;
- if the child is not living with him or her, to maintain personal relations and contact with the child on a regular basis;
- to act as the child's legal representative.
Having PRRs entitles a parent to take key decisions relating to the child, such as where they will live and go to school, and what medical treatment they should receive. In addition, parents have an obligation to provide financial support for their children under the Family Law (Scotland) Act 1985 (c 37) and the Child Support Act 1991 (c 38). In certain circumstances, this obligation continues when the child in question is beyond the age at which the parents have parental responsibilities under section 1 of the 1995 Act. The child's mother (irrespective of whether she is married to the child's father (s3(1)(a))) and the child's father, if he is “married to the mother at the time of the child’s conception or subsequently” (s 3(1)(b)), have automatic rights. In line with Scottish Law Commission proposals in 1992, the Family Law (Scotland) Act 2006 has brought Scots law in line with English law to the extent that an unmarried father will obtain parental rights and responsibilities if he is registered as the father on the birth register. A married father's PRRs continue after divorce, unless they are specifically removed by a court. If unmarried fathers or stepparents do not have PRRs, they must either make a Section 4 Agreement, or apply to the court under section 11 for rights.
United Kingdom
According to the Children Act 1989, Section 3, 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."[4] Section 2 states that if the mother and father are married to each other at the time of birth, both acquire parental responsibility, otherwise, the mother automatically acquires it and the father has three ways of acquiring it: a) he becomes registered as the child's father according to specific paragraphs or sub-paragraphs in the Births and Deaths Registration Act 1953, the Registration of Births, Deaths and Marriages (Scotland) Act 1965, or the Births and Deaths Registration (Northern Ireland) Order 1976 (b)he and the child's mother make a parental responsibility agreement in which he acquires parental responsibility for the child or (c)the court orders that he shall have parental responsibility for the child.[4] This act also states the process for second female parents and step-parents, to acquire parental responsibility as well as the appointment of guardians. A court can only appoint a guardian to a child who has no parent with parental responsibility for him/her or if the individual with whom a child was to live according to an applicable child arrangement order has died.
Parental responsibility cannot be transferred or surrendered, completely or in part. Individuals may delegate the responsibility to someone else but this doesn't mean that they aren't responsible anymore. In other words, they would still be liable for the child.[5]
In United States
Citing a constitutional right of parents to direct the upbringing of their children, the U.S. Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000), held that "the interest of parents in the care, custody and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court." This includes parents' fundamental right to make decisions concerning the care, custody, and control of their children, see, e. g., Stanley v. Illinois, 405 U. S. 645.
There is a presumption that fit parents act in their children's best interests, Parham v. J. R., 442 U. S. 584, 602. There is normally no reason for the State to inject itself into the private realm of the family to further question fit parents' ability to make the best decisions regarding their children, see, e.g., Reno v. Flores, 507 U. S. 292, 304.
In Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), the Supreme Court held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own." Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), the Court again held that the "liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control." The Court explained in Pierce that "[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Id., at 535.
In Prince v. Massachusetts, 321 U. S. 158 (1944), the Court again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Id., at 166. See also Wisconsin v. Yoder, 406 U. S. 205, 232 (1972) ("The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition"); Quilloin v. Walcott, 434 U. S. 246, 255 (1978) ("We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected"); Parham v. J. R., 442 U. S. 584, 602 (1979) ("Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course"); and Santosky v. Kramer, 455 U. S. 745, 753 (1982) (discussing "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child").
"In light of this extensive precedent," the Court said in Troxel, "it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children."
See also
- Parents' rights movement
- Shared parenting
- Parenting plan
- Childrens centre
- List of parenting issues affecting separated parents
- Parental Rights Amendment to the United States Constitution
References
- ^ "Parental rights and responsibilities: Who has parental responsibility - GOV.UK". www.gov.uk. Retrieved 2018-01-18.
- ^ "Children (Scotland) Act 1995". www.legislation.gov.uk. Expert Participation. Retrieved 2018-02-17.
{{cite web}}: CS1 maint: others (link) - ^ "Children (Scotland) Act 1995". www.legislation.gov.uk. Expert Participation. Retrieved 2018-02-17.
{{cite web}}: CS1 maint: others (link) - ^ a b "Children Act 1989". www.legislation.gov.uk. Expert Participation. Retrieved 2018-02-17.
{{cite web}}: CS1 maint: others (link) - ^ "Children Act 1989". www.legislation.gov.uk. Expert Participation. Retrieved 2018-02-17.
{{cite web}}: CS1 maint: others (link)
External links
This page was last edited on 3 June 2024, at 21:15