Judicial guidance on the exercise of parental responsibility

When parents need to consult about decisions

The other day on Twitter a well-known family lawyer asked for assistance in identifying a case she could not remember. It was on the subject of parental responsibility. Thinking that the case rang a bell in the depths of my memory, I did a search for it. Unfortunately, after half an hour looking I had not found it, so I gave up. Shortly thereafter, someone far more knowledgeable than myself came up with the answer. I thought it might be instructive to share it with you.

Parental responsibility can be a confusing concept for parents to grapple with (it can also trip up lawyers). Part of the reason for this is that there is no definitive list of all the things that come under the umbrella of ‘parental responsibility’. The statutory definition is not particularly helpful, merely informing us that 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.”

So it is very useful when one comes across guidance on the subject, particularly when it is from a senior member of the judiciary. The judge in the case was none other than the late and much lamented Mr Justice Wall (as he then was), subsequently to become the President of the Family Division.

The case was A v A, decided in the High Court back in 2004 (hence the difficulty in recalling it). It related to a private law dispute between the parents concerning their two children, then aged 11 and 9. The parents had separated in 1997, and the mother obtained a residence order in relation to both children in the following year.

In 2002 the father issued an application for a joint residence order and a defined contact order (this, of course, was before the age of the child arrangements order). His complaint was that the mother had been making unilateral decisions about the children’s health and education, and marginalising him from those decisions.

OK, I’m not going to go into the detail of the case itself. Suffice to say that Mr Justice Wall concluded as follows:

“This case has been about control throughout. [The mother] sought to control the children, with seriously adverse consequence for the family. She failed. Control is not what this family needs. What it needs is co-operation. By making a shared residence order the court is making that point. These parents have joint and equal parental responsibility. The residence of the children is shared between them. These facts need to be recognised by an order for shared residence.”

And then we come to the footnote to Mr Justice Wall’s judgment, which was the specific thing that the well-known lawyer was looking for. In it, Mr Justice Wall set out a list (not, of course, comprehensive) of the decisions that a parent might take when exercising parental responsibility, with an explanation of whether those decisions should be taken unilaterally, or jointly with the other parent. Here it is in full:

1. Decisions that could be taken independently and without any consultation or notification to the other parent:

• How the children are to spend their time during contact
• Personal care for the children
• Activities undertaken
• Religious and spiritual pursuits
• Continuance of medicine treatment prescribed by GP

2. Decisions where one parent would always need to inform the other parent of the decision, but did not need to consult or take the other parent’s views into account:

• Medical treatment in an emergency
• Booking holidays or to take the children abroad in contact time
• Planned visits to the GP and the reasons for this

3. Decisions that you would need to both inform and consult the other parent prior to making the decision:

• Schools the children are to attend, including admissions applications
• Contact rotas in school holidays
• Planned medical and dental treatment
• Stopping medication prescribed for the children
• Attendance at school functions so they can be planned to avoid meetings wherever possible
• Age that children should be able to watch videos (i.e. videos recommended for children over 12 and 18)

As I say, this is not a comprehensive list, but I think it does still provide useful guidance for separated parents having difficulties in making decisions relating to their children, despite the years that have passed since the judgment was handed down.