We need to talk about Parental Responsibility Mrs Justice Theis ALC Annual Conference Keynote Address 22 November 2019 It is not without some trepidation that I stand here with this title; before an audience that knows more about parental responsibility than any other. Many of you advise daily on what it means, guide those who seek your advice about how it is exercised and what steps can be taken. My aim is not to tell this audience how to do their job, which they already do so well, I hope to stimulate discussion about parental responsibility in its wider context. This year marks the 30th anniversary of the Children Act 1989 (CA 1989). It is an Act which continues to provide the essential scaffolding that underpin much of what many here advise on each day. It has survived the changes that have surrounded it ranging from six President’s of the Family Division1, seven Prime Ministers 2(soon to be eight), eleven Lord Chancellors3 and fourteen chairs of the ALC4, as well as the many changes to family life in the three decades it has served the society in which we all live. What I intend to do is look at the background of how parental responsibility came to be defined in the CA 1989 (a concept created by the Act), then consider some of the ways it has been developed over the last three decades and then, finally, consider what lays ahead. This lecture is being given against the backdrop of an increase in public and private law applications. Such a rise, by definition, places pressure on all aspects of the family justice system. Consequently, many areas are struggling to manage the applications in a timely way, invariably to the detriment of the children who are the subject of them. Whilst, of course, recognising applications that involve allegations of domestic abuse and safeguarding issues must be in the court system, many of the private law cases don’t have these features. 1 Sir Stephen Brown, Lady Butler-Sloss, Sir Mark Potter, Sir Nicholas Wall, Sir James Munby and Sir Andrew McFarlane 2 Margaret Thatcher, John Major, Tony Blair, Gordon Brown, David Cameron, Theresa May and Boris Johnson 3 Lords Mackay, Irvine, and Falconer, Jack Straw, Kenneth Clarke, Chris Grayling, Michael Gove, Elizabeth Truss, David Liddington, David Gauke and Robert Buckland 4 Ian Robertson, Pat Munroe, Liz Goldthorpe, Caroline Little, Alistair MacDonald QC, Piers Pressdee QC, Martha Cover, Alan Bean, Nicola Jones King, Maud Davis, Martha Cover, Debbie Singleton, Noel Arnold, Deirdre Fottrell QC 1 The question is, should those cases be in the court system and, if not, why are they being dealt with this way? How else can they be considered, and how can that best be achieved? The historical context The CA 1989 defines parental responsibility at section 3 (1) as ‘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’ People who are not parents may have parental responsibility in relation to a child, while not all parents will automatically have parental responsibility. The birth mother will always have parental responsibility (subject to any other order, such as adoption or a parental order). If she is married or in a civil partnership, her spouse or civil partner will also have parental responsibility.5 In addition others who care for a child will have parental responsibility (such as a special guardian or a local authority with a care order). The Guidance that accompanied the CA 1989, The Children Act 1989 Guidance and Regulations Volume 1 Court Orders, states parental responsibility can be held by the following: • The mother always has parental responsibility (unless she has subsequently lost it through adoption or through a parental order under the Human Fertilisation and Embryology Act (HFEA) 1990 (now HFEA 2008)). • Child’s father if he was married to the child’s mother at the time of the child’s birth. • Mother’s spouse or civil partner subject to the conditions in section 42 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008). • Unmarried father may take steps to acquire parental responsibility. He will have parental responsibility automatically if he registered the birth with the mother on or after 1 December 2003. Alternatively, he may acquire parental responsibility by marrying the child’s mother; applying to the court for a parental responsibility order; making a parental responsibility agreement with the child’s mother; or being appointed guardian (see below). • Second female parent similar provisions apply to a second female parent (who meets the conditions in section 43 of the HFEA 2008). • Step-parent may acquire parental responsibility for a child if he or she is married to, or the civil partner of, a person with parental responsibility for the child, either by agreement with the parent (and with any other person with parental responsibility), by court order, or through adoption. 5 Children Act 1989, s 2 (1) 2 • Special guardian has parental responsibility for the child. Subject to any other orders, a special guardianship order allows the special guardian to exercise parental responsibility to the exclusion of others with parental responsibility (except another special guardian), subject to certain statutory exceptions. • A person named in a child arrangements order as a person with whom a child lives has parental responsibility (CA 1989 s 12 (2)) • Guardian who is appointed for a child has parental responsibility (CA 1989 s 5) • Local authority acquires parental responsibility for a child if a care order (or interim order) is in place (CA 1989 s 33 (3)(a)). It also acquires limited parental responsibility by virtue of an emergency protection order (in such cases, parental responsibility is limited to action reasonably required to safeguard or promote the welfare of the child). In addition, those in whose favour an adoption or parental order are made will acquire parental responsibility for the child who is the subject of that order. In its report ‘Family Law Review of Child Law, Guardianship and Custody’ published on 25 July 1988 (Law Com 1988 No 172) the Law Commission in recommending the use of the term parental responsibility suggested that it would reflect the everyday reality of being a parent, and would emphasise the responsibilities of all those who were placed in that position. The CA 1989 provides that parental responsibility may not be surrendered (s 2 (9)) or transferred, but can be shared (s 2 (5)) or delegated and its exercise by any person is subject to any order of the court (s 2 (8)). Prior to 1925 the legal position where a child was legitimate, was that the father would hold sole parental authority over the child. It was only where the child was illegitimate that the child’s mother would have parental authority. There was no route for a sharing of parental authority, only one person could be the decision maker. The implementation of the Guardianship of Infants Act 1925 gave power to the courts to determine issues between parents which arose on divorce. Parental authority could be given to the mother of a legitimate child on divorce, although it still did not give automatic rights to them during the marriage. The parents of an illegitimate child had to wait 34 years for the Legitimacy Act 1959 to achieve similar access to a court with respect to their child. In 1969 in Hewer v Bryant [1970] 1 QB 357 the Court of Appeal considered the meaning of ‘in the custody of a parent’, Sachs LJ said (at page 373) it 3 ‘’…embraces a bundle of rights’, or to be more exact, a ‘bundle of powers’…These include power to control education, the choice of religion, and the administration of the infant’s property. They include entitlement to veto the issue of a passport and to withhold consent to marriage. They include, also, both the personal power physically to control the infant until the years of discretion and the right (originally only if some property was concerned) to apply to the courts to exercise the powers of the Crown as parens patriae.’ Later he observed ‘…the legal right of a parent to the custody of a child…is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with the right of control and ends with little more than advice.’ Perhaps this was the start of a change, recognising that the rights must be held for the benefit of the child, rather than that of the adult and the reality of how they can be exercised as the child gets older. It was nearly 50 years before any other significant reforms were implemented. The Guardianship Act 1973 brought about a change in the status of mothers towards their children. Section 1, entitled ‘Equality of Parental Rights’ provided that ‘In relation to the custody or upbringing of a minor…a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other’. It made provision for both parents to have rights and authority and to act on those rights, both collectively and autonomously. Where there was a dispute, this was a matter for the court to resolve. Prior to the CA 1989 great emphasis was placed on the rights and authority a parent had over the child. As some in this audience will recall, disputes often focussed on the rights of ‘custody’ and ‘access’.