Two critical changes to child law are on the horizon, and we wanted to be the first to let you know. In part one, we look at the changes to parental responsibility where people with parental responsibility have committed serious sexual offences.
Understanding Parental Responsibility
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” (section 1(3) Children Act 1989). Without any family court orders in place, all people with parental responsibility share it equally. You do not have to be a biological parent to have legal parental responsibility for a child and there are many orders under which parental responsibility can be conferred.
However, this post will focus on mothers (who acquire parental responsibility automatically upon birth of the child) and fathers. Fathers can acquire parental responsibility if they are married to the mother when the child is born, or if they are named as the father on the child’s birth certificate. If they are not married to the mother at the time of birth, and if the birth is registered without them, they can later acquire parental responsibility by the parents signing a parental responsibility agreement, or by a court order.
How the Approach to Parental Responsibility is Changing
Contrary to some common myths, once someone has parental responsibility, it is unlikely to go away. It does not lapse after a parent has been out of the child’s life for a certain amount of time, even if they have been uncontactable. Nor is it automatically restricted if the person has not been a “good parent” to the child, even if they have abused the child. Parental responsibility can be removed by adoption, or by court order. However, such orders are extremely rare and are currently only contemplated in the most serious of circumstances.
However, this approach is changing. The Government have announced that parental responsibility will be automatically restricted for the following:
- Fathers who have been convicted of rape which resulted in the child’s conception; and
- Parents convicted of serious sexual offences against any child. This could apply to both mothers and fathers.
In instances where a rape allegation has been made, the Crown Court does not convict but considers that the child may have been conceived in rape and they must refer the case to the Local Authority, who will have six months to obtain the consent of the mother for them to initiate Family Court proceedings.
What Does A “Restriction” Constitute?
This week’s Government press release defines it as where “a parent can no longer take active steps in their child’s life, including making decisions over their schooling, medical care or trips abroad.”
The safeguarding intentions of this change are clear, and it will be resoundingly welcomed by many victims of abuse.
However, the practical applications produce a host of complications. The trouble is that the practicalities of parental responsibility (PR) are not clearly defined in English law. Removing a child from the UK, or changing their surname, are the only examples specified in the Children Act 1989 as requiring the consent of everyone with PR (section 13). But what of other decisions?
The Government guidance notes that if you have PR for a child, but do not live with them, “both parents with responsibility must agree in writing [on] a major decision.” However, nowhere is the term ‘major decision,’ nor a conclusive list of examples, found in child law.
Therefore, the question is exactly how, practically speaking, PR will be automatically restricted. Prohibited Steps Orders are a current mechanism for restricting PR. However, the wording of each of these orders will specifically relate to the individual case facts. It will be a difficult task to know which activities the blanket automatic restriction will apply to.
Could this open the door to a defined list of PR activities to be enshrined in law? Many would welcome this, arguing that the current law is virtually silent on which decisions need the consent of the other parent. Others will argue that a defined list will always be too prescriptive, and inappropriate for the individuality of family life.
The Absent Parent Conundrum
Many families experience the difficulty of an absent parent; one who has not been contactable for many years and has never expressed any interest in the child’s upbringing. Without court orders, the present parent faces the challenge of requiring the absent parent’s consent for decisions such as taking the child abroad (and, without a defined list, agonising over exactly which other decisions they should be obtaining consent for). Many present parents feel that an automatic restriction of PR should be introduced for absent parents, including those who have not committed any crimes and are not considered unsafe, but have simply shown no commitment to their child. Will the announced changes spur present parents to demand this?
Closing Thoughts
All of this remains to be seen. One thing is for sure; this represents a significant change to a previous cornerstone of child law.
But what of parents who have no restrictions on their parental responsibility; isn’t it assumed that they should be involved in their children’s lives? Look out for our next post, on how the Government plans to change the presumption of parental involvement.
At Ison Harrison we have a team of specialist family solicitors who can help with a range of issues concerning child law.
If you need some advice and support to help make decisions regarding your child(ren) contact us on 0113 284 5000 or email family@isonharrison.co.uk.
