Just before I went on air at This Morning last week, Holly Willoughby – a new mum herself and one of the presenters of the programme – turned to me and said “just what rights do parents have to their children?”
It seems like an easy question. But in fact it is far from it, and happens to be one that is leading debate-upon-debate in political, social and legal circles in this country and around the world.
There wasn’t time to explain the convoluted situation we have at present in England and Wales before we went live. The subject didn’t come up on the show, although it was scheduled so I thought I would cover the topic here, as few people fully understand the current law. I also wish to pose a few questions of my own, on the current state of affairs from a parent’s perspective.
Parents and their rights
Parents are the people who usually plan, bear, nurture, educate, maintain and care for their children. They love them unconditionally – even in times of extremis (and I’m sure every parent will have their own definition of what extremis entails!). As parents, we selflessly do whatever we can for our child. We do so regardless of their advancing age, because we unashamedly have natural and profound feelings of love and attachment to them, so much so that we cannot ever love any other in the same way.
But the feelings of parents, as raw and deeply felt as they may be, are often ignored or simply not recognised in law.
This “stiff upper lip” approach, which ignores the rights of parents, is applied to private law child legislation that was formed as a result of the prevalence of child-centred sociology 20 years ago. Back then the concept of custody and access to a child, which had given rights to parents, was done away with. In favouring such a child-centred approach, especially within a catch-all legislation that encompassed both public and private law, I have to wonder whether the baby was not thrown out with the bath water. And I also have to ask: should public and private law for children be dealt with together?
Entirely child-centred legislation may well be understandable in cases of child abuse and parental neglect that occupy the public law courts. But it is not as easily comprehensible if a dispute arises as a result of a broken relationship between parents, given that accepted sociological thinking has for many people moved on.
Nowadays parental needs and rights are at the forefront of family law, as a result of parents literally demanding recognition. However, not everyone agrees and we continue to adopt the same approach. This was highlighted by The Law Society’s family law committee in a recent press statement that queried the Government’s proposals for a legal presumption of shared parenting after divorce.
With such conflicting opinions, what is the state of the current law in relation to the rights of parents?
The relevant legislation is set out in the Children Act 1989. Section 2 of the act defines what is known as “parental responsibility”, which married parents both have for their children.
So what is “parental responsibility”?
According to Section 3 of the Children Act 1989, parental responsibility is:
“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.”
(N.B: Unmarried mothers automatically acquire parental responsibility for their children, but unmarried fathers do not – unless their child was born after 1st December 2003 and their name appears on the birth certificate, or they have acquired parental responsibility by agreement or court order. Even if the unmarried father has lived with the children for years, this does not automatically confer parental responsibility on him. The court will only consider giving him parental responsibility if he can demonstrate good reasons for his application and a sufficient degree of commitment and attachment to the child. In making its decision, the court will consider all of this from only one perspective: that of the child.)
Unhelpfully, and deliberately no doubt, the statute does not go on to further define what this definition of parental responsibility actually means – in particular, the rights to which it refers, including those of a parent to a child.
So with no legal definition how does a court make a decision involving children, and parents who have “parental responsibility” for these children?
According to Section 1 of the Children Act 1989, the court must make its decision solely on the basis that “the child’s welfare shall be the court’s paramount consideration”. Similarly, the issue of “delay” is considered so important it has its own subsection:
“In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.”
To assist the court in its decision, there is a welfare checklist at Section 1 (3) of the act, detailing other factors that it must take into consideration:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
It is interesting to note that only point (f) makes any mention of the parents, and only then from the perspective of the child. It could easily be argued it is that clause alone which has given rise to all the problems experienced by separating parents. The test is one of fitness which a court is bound to apply. Why so? Surely fitness to parent and meeting a child’s needs should be a given? Why is a parent required to prove fitness to parent a child? If there is to be a test, should it not be coming from the opposite position – why isnt a parent fit to parent a child?
As the Children Act 1989 is vague in relation to the meaning of parental responsibility, and in particular what “rights” means in relation to parents, I checked Directgov for further information. The website interestingly refers instead to “key roles” of parents – and these are as follows:
- providing a home for the child
- having contact with and living with the child
- protecting and maintaining the child
- disciplining the child
- choosing and providing for the child’s education
- determining the religion of the child
- agreeing to the child’s medical treatment
- naming the child and agreeing to any change of the child’s name
- accompanying the child outside the UK and agreeing to the child’s emigration, should the issue arise
- being responsible for the child’s property
- appointing a guardian for the child, if necessary
- allowing confidential information about the child to be disclosed
We are not alone in this country in specifically failing to define the rights of parents. The position is the same in Australia for example. However, here in England and Wales we seem to have reached a stage where only the rights of the child count, despite the notion of parental responsibility. While this may ultimately have arisen as the preferred option following bitter custody fights in the past, are we not capable of reaching some meaningful middle ground?
In a perfect world when parents are not in dispute, the lack of a definition of parental rights may not matter. But if they are, parents will unhappily discover that phrases such as “parental responsibility” and “key roles” mean very little. Instead, they will find that the parent with whom the child is living holds all the cards – and not because of the law, but because of the lack of it. In reality parents have no presumptive rights to any form of shared parenting, contact or residence of the child, even though the Directgov site seems to encourage parents to believe otherwise.
So from the perspective of a parent, is this right?
In order to begin to answer this question, I first have to ask myself how I would have felt had I surrendered my child to an estranged spouse and found myself physically separated from them with no redress and no presumption of any form of shared parenting in my favour? Unhappily I imagine, particularly if I then had to build a case as to why I should have my child living with me, or see him. Surely this balance is wrong?
We are told that a debate is currently swirling within Cabinet as to the pros and cons of the Family Justice Review report, which was entirely created by child-focussed professionals. The Law Society Family Law Committee is similarly represented by a number of respected child lawyers. The consensus of these professionals seems to be that there should be no presumption of shared parenting – but are they right?
If a strong case has been made over the last few decades for the rights of parents, which I for one think it has been, the argument moves on to the extent to which parental rights should be enshrined within law while maintaining a built-in safeguard for the child concerned.
I don’t see what harm can be done by amending the welfare checklist to include a presumption of shared parenting in favour of both parents. This would include the right to exercise contact and have their child live with them, providing of course that this is not deemed harmful to the child. Altering the balance in favour of both parents’ rights simply echoes the “key roles” on the Government’s own website and seems to me to be just as important as highlighting the evil of “delay” in Section 1 of the Children Act 1989.
Ignoring parents’ rights entirely, merely paying lip service to their “key roles”, while knowing it will count for nothing in a dispute devalues the more important role of a parent particularly living with a child. While there are other statutes which require parents to support their children, parenting a child is a unique relationship and a privilege for all concerned. Consequently I see nothing wrong with a presumption in favour of shared parenting. It will be up to the courts to interpret what that means in each case, and in many cases it will potentially make no difference at all. But at least both parents can go to court confident that in law, each of them has a right to parent their child and “parental responsibility” has real meaning for them both.
So, do you agree that in law this special relationship should remain a one way street? Please let me know your thoughts in the comments section below.