What does the future hold for parents’ rights?

Children|January 16th 2012

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.

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comments(21)

  1. Fiona says:

    Cough.. cough! I think you mean in *England & Wales* you seem to have reached a stage where only the rights of the child count, despite the notion of parental responsibility. -;)

    In Scotland parents have responsibilities and rights and s2 Children Act (Scotland) 1995 specifically states that parents have the right to have their child live with them, or if the child doesn’t live with them the parent has the right “to maintain personal relations and direct contact with the child on a regular basis.” If separated parents cannot agree the living/contact arrangements between themselves like E&W they can apply to court for an order to regulate Parental Responsibility and Rights. The welfare of the child is then paramount so in practice there isn’t really any difference.

    Perhaps I’m missing something, but there seems a lack of joined up thinking that Parental Responsibility means all the rights etc a parent has in relation to child but excludes something as fundamental as having the child live with them or maintaining personal relations?

  2. Nick Langford says:

    An extremely interesting – if disturbing – article which certainly answers Holly’s question, if not in a way she would have liked. It is refreshing to see a family lawyer acknowledging that the existing law doesn’t work very well – something other blogging lawyers often deny; the usual response is that the courts already act to protect parents’ rights. Another area that needs looking at is the right to family life – a right that only seems to apply once it no longer needs protecting.

    P.S. Before anyone else objects, I assume “paternal neglect” is a typo for “parental neglect”?

  3. Marilyn Stowe says:

    Fiona
    This is the section of Scottish law to which you refer:-
    (1)Subject to section 3(1)(b) and (3) of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right
    (a)to have the child living with him or otherwise to regulate the child’s residence;
    (b)to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing;
    (c)if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and
    (d)to act as the child’s legal representative.

    This is excellent. I wasn’t aware of this but it pretty much proves my point.
    Thanks very much indeed for the reference and I’m altering the post accordingly, including the typo Nick!
    Marilyn

  4. Tim Marshall says:

    Excellent article that lays bare the truth of the family law in this country today. The most poignant section to me is below, and I feel it should be italicised and emboldened so people get the message:

    “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

    Even something as basic as contact for the non resident parent can be ignored with relative impunity if you are the parent with care. And the only remedy is to spend years (and I do mean many years – 6 in my case, though 10+is not unusual) and thousands (and I do mean many thousands – 55 and counting in my case) of pounds fighting for your child’s right to be parented by you

    Quite absurd and plainly wrong. We demand a preemption of shared parenting now.

  5. james says:

    The Law is put forward out of the wishes of the people through their representatives in Parliament. I have always found it astonishing that the those most effected by family law, i.e. the children and parents, have no consultation in how the law is made. Consequently, numerous committees are set up involving people who have absolutely no personal experience in the area of child/parent contact rights. These committees are given the authority to make judgements on things they know nothing about and are then able to wash their hands of any consequences while those effected by their judgements have to live with sometimes very painful and dire consequences for their children.

    This area of law is so emotive that only those who have been personally involved (both parents, extended family and children) should give the lead on how the law is shaped. Unless you have experienced the effects this current law has on children and parents, I feel you are not qualified to appreciate the damage that can be done by such out of date decisions as those that are being made today.

    I would personally like the court welfare officer in my case, nearly 20 years ago, to meet my daughter today and explain to her why he felt that she was better off with her alcoholic, unfaithful and mentally unstable mother, knowing her intentions were to cut contact between my daughter and myself at the first opportunity. I would like him to explain to her why she had to endure what she has over the last 18 years or so as a result of his decision. I would also like him to answer the question I gave him all that time ago, which he failed to answer “would he want his 2 daughters brought up by this woman”.

    Change the law !!!

  6. Andrew Bailey says:

    Another issue which needs to be considered are unfounded allegations made against a parent by either spouse or children. The defendant (usually the father) then has to prove these allegations wrong, otherwise they are accepted as being correct. If these allegations, such as violence, abuse etc. were tried in a criminal court, rather than the closed family court system, then more justice would be done, rather than law by speculative rumour.

  7. Yvie says:

    I agree with you Andrew. Those who make serious allegations should be required to make such allegations in a criminal court.

    My son is presently going through the Courts to increase his shared residence order and to include holidays. His ex. wife was referred by her solicitor to a Women’s group who help abused wives and children and who offer legal representation free of charge. Naturally there had to be a substatantial list of accusations against my son for her to qualify for this legal representation. Her plan was to overturn the present shared residence order to a no contact order. The judge went with my son at the Hearing and the existing shared residence order was retained.

    I have to question the integrity of any solicitor who would advise a client to go down this unsavoury route. She may have been working for the interests of her client, but it could have had a devastating outcome for the children. Fortunately for my son he has a good solicitor who acted promptly on his behalf.

  8. Andrew Bailey says:

    Question here. RE: Fiona’s response. If I moved to Scotland. Would I then have the right to see my children?

  9. DT in Cheshire says:

    I’ve been thinking a lot about this post since it went live and I’m still thinking! I don’t think I’ve reached a full conclusion in my own mind yet as a lot of very interesting issues have been projected.

    I am very much in favour of child focused legislation it has to be said; however, I am in favour of the presumption of shared parenting (assuming of course that both parents are able to give the child/children all they need).

    What’s more, I think this presumption would be in the child’s best interest. I think that they may, in some cases, be relieved from being ‘piggy in the middle’.

    I think also this would be very important for same sex couples who have had children or adopted where both have P.R.

    As you say Marilyn, it probably won’t be an issue for the most part, but having it there would be a reasonable safeguard for both parents and in my view, the children.

  10. DT in Cheshire says:

    Hi Andrew

    The court must investigate all serious allegations, however, this does not mean that the burden of proof falls on the accused, although it may feel this way.

    Also, you must remember that the difference between the civil and criminal courts is not just about ‘closed doors’, it’s about standards of proof; ie ‘the balance of probabilities’ Vs ‘beyond reasonable doubt’. It is a very different test with often different consequences and with good reason.

    If such serious allegations are being made, and if this hasn’t been investigated by the police, then a judge will normally refer it; ie it doesn’t remain behind closed doors.

    If the police are aware of it and it hasn’t been investigated/heard in the criminal courts, then I can only assume there was insufficient evidence/no case to answer.

    Of course, the family courts are not strictly ‘closed’ like they used to be, however, I take your point.

  11. Garry says:

    Excellent article outlining the preposterous ‘doublethink’ of politicians and those who administer the law. I admire your tenacity Marylin (as I see your office from my house in Leeds). I have shared residency yet (after 10 years) my child (now teenager) lives with me full time. Recent events have led me to blieve that even full residency and full legal rights (which I hold as a minority of single fathers hold) still, the state does not allow me to implement the ‘key roles’ of the directgov web site. In fact, it positively blocks my child’s basic human rights. It is insidious and appalling. The 1989 Children Act is not defined properly and open to repeated abuse. Homeless parents ‘in the best interests of the child’ How did we get here?

  12. luci brown says:

    Totally agree….. I’m in favour of presumption of shared parenting. Some poor fathers have been unfairly labelled by politicians etc., as absent or non resident, giving impression they do not care about their children….. but, often simply because of the law they are prevented from having contact with them against their own wishes. These fathers and other paternal family are controlled and manipulated by the system consequently denied access and it is wrong and unjust that their children are often led to believe they are unloved and are denied access to caring parents! Ultimately, some poor fathers in this plight cannot cope and lose the will to live… and the family law has blood on it’s hands! Help us campaign to right this discrimitory law…..

  13. Ann says:

    I have been following your blog since my daughter began divorce proceedings against her husband. I understand the reasoning for shared parenting, but for this to be successful it needs co-operation from both parents, something you and you correspondants fail to consider.

    My son in law left my daughter following her discovery that he was having an affair. He rents a property and insisted that the three children (five, four & two at the time) lived with him for three days and three nights a week. He has them Monday, Thursday and Friday evenings (collecting and taking them to and from school/nursery) and all day Saturday. My daughter has them Saturday, Sunday, Tuesday and Wednesday nights, and all day Sunday. My son in law decided on the days. Her solicitor told her that she could not stop him having the children. This has continued for six months. The children are too young to remember which day is which and constantly get confused as to whose house they will be staying. He frequently is late collecting the younger child from nursery, and collects the older boys from their after school club at 5.45 pm. He has them all day Saturday, returning them to my daughter high on e numbers- as Cola and sweets are the main diet he feeds them. He never cooks them meals – even when he has them in the school holidays. The time for returning them on Saturday is 6.00 pm. When my daughter asked him if he would return them at 5.00 on Nov. 5th, as she was joining another family at an organised Firework Display, he refused and returned them at 6.15 pm He insists that all school holiday are divided equally, with no flexibility. On days when he does not see the children, he either stays at his girlfriend’s flat, or she visits him.
    On Boxing Day morning a 4.00am the elder child was taken by ambulance to the hospital with breathing difficulties. My husband and I went to stay with the other two boys. After medication the child was discharged and my husband collected them from the hospital. She had kept her husband informed by mobile ‘phone. It was ‘his day’ to have the children. He should have collected them at 9.00 am, but came for them at 9.30am (he had been staying with his girlfriend) So much for the caring father.

    Prior to them spliting up, my son in law ‘worked late’ and was never at home to help put the children to bed. Saturday and Sunday morning he went training. He had very little contact with them, but now he want to show himself as a caring father. He pays my daughter the minimum financially.
    She has always worked full time and it is her money that keeps the home going. She is, and always has been a very caring mother and would like to have the children full time. Her solicitor wrote to her husband and offered alternate weekends, Friday to Sunday. My son in law refused.
    Commincations from school often go missing, and my daughter has yet to see her son’s photographs taken at nursery. Her solicitor suggested a communications book. She has tried this twice – but they go ‘missing’ My son in law will not be ‘told what to do’.
    I am sure the boys would benefit more from ‘quality time’ with their father then ‘quantity’.
    To an outsider, I am sure he seems a caring father. It is my belief that when he gets as much money from the settlement as he can – as a ‘caring father’, – he will then stop seeing the children. I cannot imagine that his girlfriend, who has a young son of her own, accepting three more boisterous, noisy, lively young children into her household.

    My son in law is a professional man on a good salary, but is determined that he will get what he wants.

    The both attended mediation, without success.

  14. Judy Park says:

    Ann
    I can hear the distress and frustration in your post. This scenario is all too common when 2 very conflicted parents attempt shared parenting.
    I am a Family Mediator and meet this situation daily.
    The only way that shared parenting works is were both parents are co – operative, helpful, generous, non – competitive, supportive of each other in their separate roles , organised and most of all retain a sense of humour. I expect most of my list is sadly lacking in your families case.
    Your daughter and son in law both feel they know what is right for the children. Your daughter feels she should be the main carer, the children spending 12 nights each fortnight with their Dad. He feels it should be equal time with each. You can see how far apart they are in their thinking. I know you will not want to hear this Ann, but why shouldn’t your son in law spend as much time with the children as your daughter.
    You say they both work full time so they need each other to parent these very young children. They have many years of parenting ahead of them.
    You say that your son in law was not a specially good dad before the split and that now he’s making an effort. I would say ‘great’ – that can only benefit the children.
    The way forward:
    I wonder whether either solicitor is planning court to resolve these differences? Although the last option to try it would give the judge the option to order their attendance at a Parenting after Parting Course. This is a days workshop to help parents understand life from their children’s point of view as they struggle with the reality of living in 2 homes with parents who continue the marital conflict after separation. You say that mediation did not work. For it to be successful the parents have to be willing to listen to the other parents point of view, understand where they are coming from, be helpful and generous in working out solutions to the difficulties eg. What if someone is late? what do we feed the children etc etc. It is not about one parent forcing their parenting style on the other.
    Maybe they tried mediation too early after the split?
    Ann, all you can do is be the best grandma you can be for those lively mites. Try very hard not to take sides. Speak kindly of your son in law in the children’s ear shot. I know all these suggestions are much easier said than done but having a neutral, loving, supportive grandma at this time is vital for the children.
    Good Luck.
    Judy

  15. Marilyn Stowe says:

    Ann
    When I read your post last night I immediately wrote to Judy and asked if she would reply to you. I have the greatest confidence in her abilities, and if your family are interested in purusing the mediation option again I think she might be able to help resolve at least some of the pain you are all going through.
    Very best wishes and thank you for contacting my blog.
    Many thanks to Judy too.
    Marilyn

  16. Judy Park says:

    Can I correct an error in my post?
    Your daughter feels she should be the main carer, with your son in law spending 2 nights a fortnight with thechildren.

  17. Ann says:

    I am not at all surprised at the response from Judy. It is what I expected, after reading your blog for several months, which always seems to favour fathers, but I felt needed to put over the scenario from the perspective of the children.
    How do you imagine a three year old, who has been at nursery since 8.00am feels , when all of the other children have been collected and he has to wait & wait & wait for a parent (and he doesn’t know which one) to collect him? He is very distressed. He is a very confused child and at his young age there is only one way of showing this – by hitting and throwing toys, shoes etc. at children and staff. The nursery are being very understanding and trying to help him overcome his anger.
    The five year old who was the most placid of childen, is now having temper tantrums. The six year old is not managing to keep up with his piers at school.
    All of these issues are dealt with by my daughter – Dad is not interested and just laughs them off.
    Fortunately, my husband & I have a good relationship with all of the children and they will often say things to us and we can try to reassure them. We do not criticise their father to them.

    There have been many other occasions when he has put himself before the children – too many to list, but this doesn’t seem to be important in current thinking.

    As I said previously, I believe that when the divorce is settled to what HE wants financially, the childen will not be a very big part of his life. It will then be left for my daughter to pick up the pieces.

    I think it is unfortunate that the emotional welfare of the children is not s priority any more, but more consideration given to a man just because he is the biological father.

  18. Paul Randle-Jolliffe says:

    I often ask who are the natural guardians of children in law, people answer parents but in English Law the right for a natural parent to be be the guardian to their natural child was abolished in the Children Act 1989.

    The default then the state becomes the default guardian of children, so in any dispute you have to win that from the state!

    This is wrong!

  19. Marilyn Stowe says:

    Dear Ann,
    After I appeared on This Morning, this is part of an e mail I received:-
     
    “Why is your divorce advice all female based ?
     
    9/10 times the woman will generally end up with more than her equal share upon divorce.
    With this in the woman’s mind (and it is from before the man realises) she becomes a manipulative liar, often crying wolf to varying extremes, to which everyone (including men) jump to the defence of the poor woman against the nasty man. Even the man sometimes feels there must be some truth in these lies and that it must be his fault. He is supposed to be the strong one and will be lambasted for showing any human emotion or weakness.
     
    Please give some advice for men facing very difficult manipulative women trying to ruin them……”

    My advice is given to the person who seeks it. It is not sexist, I do not favour one sex over another. I advise as I see the position.
    I sympathise with you and your family about this situation. The reality is you can’t change a person, you have to work with what you have got, like it or not.
    It’s because of that and because of the emotional strain and turmoil that you are all going through I thought it best for all of you to take practical advice how to deal with things going forward. Your son in law doesn’t sound like a particularly decent man and I agree he may well be manipulative and thinking only of himself. But the reality is, he won’t change.
    So if there is a way to handle him, with all his faults to minimise the damage being done to the family, it seems to me that this is the sensible way to go. That is why I sought practical help for you all.
    Best wishes,
    Marilyn

  20. Tara says:

    I’m not sure why a presumption that a primary relationship of an adult with parental responsibilities for a child is good for a child couldn’t be incorporated into a best interests analysis. That would link the voluntary assumption of parental responsibilities with the relationship with a child and potentially accommodate situations where families are planned with more than two primary parents.

  21. Darren Bolton says:

    I live in Scotland and have a court order to see my child. Until the courts actually punish the resident parent who ignores the court order, it is not actually worth the paper it is written on!

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