Hafsah Masood (Worcester College)
Who has parental responsibility & what is the significance in having it?
The Children Act 1989 replaced the traditional approach to parents’ ‘rights’ with a new concept of ‘parental responsibility’ which is defined in s.3(1) as “all the rights, duties, powers and responsibilities and authority which by law a parent of a child has in relation to the child and his property.” As will be seen, despite the statutory definition, parental responsibility remains an elusive concept and it is has proven difficult to ascertain precisely what it entails. Before reflecting on this question, it is necessary to consider who has parental responsibility.
Parental responsibility does not necessarily correlate with legal parenthood; as will be seen a legal parent will not necessarily have parental responsibility although this is indeed a common assumption. In fact, non-parents may be ascribed parental responsibility by virtue of a residence order, an emergency protection order or by being appointed guardian. Therefore unlike legal parenthood which may be attributed to only one mother and one father, parental responsibility may in fact be vested in several people regardless of gender. In this sense it provides a more flexible mechanism for recognising social parenthood.
In relation to legal parents, by virtue of s.2(1) of the Children Act 1989, all mothers automatically have parental responsibility for the child. The situation becomes more complex where fathers are concerned as the law distinguishes between married and unmarried fathers. A father who is married to the mother will obtain parental responsibility under s.2(1) yet a father who is unmarried will not automatically obtain parental responsibility and must take certain steps to obtain it. Until recently, there were essentially two sources of parental responsibility for an unmarried father as articulated in s.4 of the Children Act; they could either enter a parental responsibility agreement with the mother which must be properly witnessed and registered with the court or alternatively if they were unable to reach agreement, he could apply under s.4(1)(a) to the court for a parental responsibility order. The majority of such applications were in fact successful; the court in considering such applications would consider, pursuant to the criterion laid down in Re H (Minors)(Local Authority: Parental Responsibility), the degree of commitment the father and the degree of attachment which the father showed towards the child and the reasons for the father for applying for the order. Such commitment may be manifested, for instance, by limited contact and financial support; perhaps surprisingly, the courts have held that reprehensible conduct on the part of the father or the fact that he may potentially misuse the order does not necessarily indictive of lack of commitment to the child and therefore does not preclude parental responsibility. Therefore, in Re S, evidence of the father’s conviction of possessing paedophilic literature did not obviate his alleged commitment to the child; the father was not held to be ‘feckless’ as he had paid maintenance and contributed to the mortgage and therefore he was granted parental responsibility by the court. However it appears if the misconduct of the father does reveal a lack of commitment to the child and that he may be a danger to the child, then the courts will deny parental responsibility. In Re P, the court felt that the fathers repeated criminal offences and resulting imprisonment demonstrated a lack of commitment to the child and he was denied parental responsibility. Nevertheless, where a court order is sought, the courts have essentially shown a readiness to grant parental responsibility; yet the number of parental responsibility agreements and orders remains surprisingly small. Research by Pickford has indicated that the low take-up may be attributed to public ignorance of the law. Indeed, there is evidence that many people simply assume that an unmarried father has parental responsibility, especially if the mother and father have jointly registered the child’s birth. Those who are aware of the law, in particular of the parental responsibility agreement, felt uncomfortable raising the subject with their partner as they felt it implied a lack of trust and as focusing on the breakdown of the relationship. Therefore despite the existence of procedures to obtain parental responsibility, these remained largely inadequate. Many felt that the discrimination between married and unmarried fathers was unsatisfactory and did not reflect modern society where around 30% of all children are born to unmarried parents. Indeed it was held that this constituted a breach of Article 14 of the ECHR; the ECHR rejected such claims of discrimination holding that there is an objective and reasonable justification for the difference between married and unmarried fathers. The underlying reason for the 1989 Act’s failure to automatically confer parental responsibility on unmarried fathers was the perceived need to protect vulnerable unmarried mothers, especially those whose children had been born as a result of violence or coercive relationships. The difficulty is that unmarried fathers are not a homogenous grouping; the term covers a wide range of relationships from those that may be as stable as marriage to transient and coercive relationships. Therefore in this sense there is a need to distinguish meritorious from unmeritorious fathers and many argue that basing parental responsibility on the commitment of unmarried fathers allows such a distinction to be made. However, the current law appears to proceed on the somewhat naive assumption that all mothers and married fathers are in fact meritorious, when in practice this is not always the case. The perception of the law that mothers need to be ‘protected’ from unmarried fathers from harassment who are often stereotyped as ‘social deviants’ is perhaps a remnant of concept of legitimacy which, as Pickford notes, played an important role in our construction of fatherhood.
