WS9- The modern family
Outcomes:
1. Advise a client on parental responsibility
2. Demonstrate an understanding of the issues related to removing a child from the jurisdiction
and advise appropriately
Habitual residence:
o Brussels IIa a person can only be habitually resident at one place at a time and the essence
of establishing habitual residence is to look at the centre of interest of a person’s life.
o Question of fact, Z v Z Ryder J gave some guidance which included looking at the stable
character of a person’s centre of interest, whether that be long term or short.
Parental responsibility: s.3(1) Children Act 1989
o S.3(1) defines PR as ‘all rights, duties, powers, responsibilities and authority, which by law a
parent of a child has in relation to the child and his property’.
o Gives persons with PR the responsibility of making those importance decisions and day-to-
day decisions on behalf of the child, such as education, medical care, schooling.
Married parents- joint PR
Unmarried: just the natural birth mother
Mechanisms to afford the unmarried father PR:
• Being registered father on child’s birth certificate with the consent of the mother (after 1.12.03):
S4(1)(a) CA 1989
• Entering into parental resp agreement with the mother: S4(1)(b) CA 1989
• By applying to court for parental resp order: S4(1)(c) CA 1989
• By being appointed a guardian either by mother of by court, although in these cases he will
assume parental resp only on mother’s death
• By obtaining a child arrangement order from the court
• By marrying the mother
PR Agreement BOTH PARENTS MUST CONSENT
Must be in prescribed form, signed by parents, witnessed by a Justice of Peace/justices’ clerk/court
official who is authorised by judge to admin oaths (not sol), recorded by sending together with 2 copies
to Central Family Court
- No fee payable
PR Order à S4 Where mother doesn’t agree to father sharing paternal resp
- Can be applied for and if successful, gives the father virtually the same rights and
responsibilities as if he were married to the mother
- Disputes about paternity – S20(1) Family Law Reform Act 1969 can be used to obtain court
directions for blood tests
- Court considers welfare principle (S1(1)) + non-intervention principle (S1(5)) (generally
necessary to intervene when order is sought as parents will be in dispute) à don’t look at
checklist
o Re H (Minors) looked at important factors:
, § Father’s degree of commitment to child
§ The state of father’s current relationship with the child
§ His reasons for making the app
o Re C and V states further factors:
§ a genuine concern for the child and
§ a genuine wish to assume responsibility
- Court will not refuse just because at present time there is little/no likelihood that father will be
able to exercise his resps
- Court will refuse where indication that father, who has high degree of commitment, may
abuse his parental resps
o Re P: F critical of M’s care à to use to monitor arrangements for child’s case à denied
o M v M: F had brain damage à v attached but could not carry out parental resps à
denied
- Will end when:
o Child 18
o Marriage of F to M during minority of child
o Court order discharging parental resps order
Child S12(1) CA 1989: when court makes child arrangement order naming father as person with whom the
Arrangement child is to live à must make parental resp order in favour of F
Orders
S12(1A): court must consider where appropriate to make parental resps order when making child
arrangement order naming the F as a person with whom the child should have contact, but not with
whom child should live
Guardianship S5 CA 1989: M with sole parental resps can appoint F as guardian in will à upon death F would acquire
parental resps
- M has not appointed guardian; court has power to appoint –could make this F
- If M makes someone else guardian à F can challenge by applying for child arrangement order
and/or parental resp order
- F = parent resps order during M’s life, any guardian appointment postponed while F survives
Step-Parents and Civil partners
- S4A CA 1989 allows SPs and CPs to obtain parental resps agreements with consent of all parents with parental
resp or to apply to court for parents resps order
Others:
- Local authority: if child in care
- Female same-sex partners who are not CPs by Human Fertilisation and Embryology Act 2008
How can PR be lost?
No limit on how many people can have parental resp at any time + no one will lose because another acquires it (S2(5) CA
1989)
- Care order made: LA acquires parents resp but parents still, in theory, retain parental resp
o In practice: LA is given authority to determine extent to which parents are meeting their PR: S33(3) CA 1989
Parent will lose where:
- Parent dies; and
- The child is adopted (S46 Adoption and Children’s Act 2002 – adoption automatically extinguishes parental resps
any person had before the adoption)
Unmarried father or second female partner who acquires parental resp by order or agreement or registration on birth
certificate loses by:
- Court making order ending it
- i.e. Re P: unmarried F lost order because he inflicted serious injury on the child
Anyone else:
- Lose automatically when child arrangement order terminates
Exercising PR:
In theory possible to act alone with no duty to consult each other: S2(7) CA 1989 à however good practice to consult. See:
- Re C: joint parental resp – did not confer right to unilaterally change child’s surname and therefore, collaboration
and shared consultation is advised where more than one person has PR for a child.
- Re J: certain decision made on behalf of child which, in absence of agreement by all those with parental resp,
ought not be carried out/arranged by one parent and therefore the court should be consulted and a specific issue
Outcomes:
1. Advise a client on parental responsibility
2. Demonstrate an understanding of the issues related to removing a child from the jurisdiction
and advise appropriately
Habitual residence:
o Brussels IIa a person can only be habitually resident at one place at a time and the essence
of establishing habitual residence is to look at the centre of interest of a person’s life.
o Question of fact, Z v Z Ryder J gave some guidance which included looking at the stable
character of a person’s centre of interest, whether that be long term or short.
Parental responsibility: s.3(1) Children Act 1989
o S.3(1) defines PR as ‘all rights, duties, powers, responsibilities and authority, which by law a
parent of a child has in relation to the child and his property’.
o Gives persons with PR the responsibility of making those importance decisions and day-to-
day decisions on behalf of the child, such as education, medical care, schooling.
Married parents- joint PR
Unmarried: just the natural birth mother
Mechanisms to afford the unmarried father PR:
• Being registered father on child’s birth certificate with the consent of the mother (after 1.12.03):
S4(1)(a) CA 1989
• Entering into parental resp agreement with the mother: S4(1)(b) CA 1989
• By applying to court for parental resp order: S4(1)(c) CA 1989
• By being appointed a guardian either by mother of by court, although in these cases he will
assume parental resp only on mother’s death
• By obtaining a child arrangement order from the court
• By marrying the mother
PR Agreement BOTH PARENTS MUST CONSENT
Must be in prescribed form, signed by parents, witnessed by a Justice of Peace/justices’ clerk/court
official who is authorised by judge to admin oaths (not sol), recorded by sending together with 2 copies
to Central Family Court
- No fee payable
PR Order à S4 Where mother doesn’t agree to father sharing paternal resp
- Can be applied for and if successful, gives the father virtually the same rights and
responsibilities as if he were married to the mother
- Disputes about paternity – S20(1) Family Law Reform Act 1969 can be used to obtain court
directions for blood tests
- Court considers welfare principle (S1(1)) + non-intervention principle (S1(5)) (generally
necessary to intervene when order is sought as parents will be in dispute) à don’t look at
checklist
o Re H (Minors) looked at important factors:
, § Father’s degree of commitment to child
§ The state of father’s current relationship with the child
§ His reasons for making the app
o Re C and V states further factors:
§ a genuine concern for the child and
§ a genuine wish to assume responsibility
- Court will not refuse just because at present time there is little/no likelihood that father will be
able to exercise his resps
- Court will refuse where indication that father, who has high degree of commitment, may
abuse his parental resps
o Re P: F critical of M’s care à to use to monitor arrangements for child’s case à denied
o M v M: F had brain damage à v attached but could not carry out parental resps à
denied
- Will end when:
o Child 18
o Marriage of F to M during minority of child
o Court order discharging parental resps order
Child S12(1) CA 1989: when court makes child arrangement order naming father as person with whom the
Arrangement child is to live à must make parental resp order in favour of F
Orders
S12(1A): court must consider where appropriate to make parental resps order when making child
arrangement order naming the F as a person with whom the child should have contact, but not with
whom child should live
Guardianship S5 CA 1989: M with sole parental resps can appoint F as guardian in will à upon death F would acquire
parental resps
- M has not appointed guardian; court has power to appoint –could make this F
- If M makes someone else guardian à F can challenge by applying for child arrangement order
and/or parental resp order
- F = parent resps order during M’s life, any guardian appointment postponed while F survives
Step-Parents and Civil partners
- S4A CA 1989 allows SPs and CPs to obtain parental resps agreements with consent of all parents with parental
resp or to apply to court for parents resps order
Others:
- Local authority: if child in care
- Female same-sex partners who are not CPs by Human Fertilisation and Embryology Act 2008
How can PR be lost?
No limit on how many people can have parental resp at any time + no one will lose because another acquires it (S2(5) CA
1989)
- Care order made: LA acquires parents resp but parents still, in theory, retain parental resp
o In practice: LA is given authority to determine extent to which parents are meeting their PR: S33(3) CA 1989
Parent will lose where:
- Parent dies; and
- The child is adopted (S46 Adoption and Children’s Act 2002 – adoption automatically extinguishes parental resps
any person had before the adoption)
Unmarried father or second female partner who acquires parental resp by order or agreement or registration on birth
certificate loses by:
- Court making order ending it
- i.e. Re P: unmarried F lost order because he inflicted serious injury on the child
Anyone else:
- Lose automatically when child arrangement order terminates
Exercising PR:
In theory possible to act alone with no duty to consult each other: S2(7) CA 1989 à however good practice to consult. See:
- Re C: joint parental resp – did not confer right to unilaterally change child’s surname and therefore, collaboration
and shared consultation is advised where more than one person has PR for a child.
- Re J: certain decision made on behalf of child which, in absence of agreement by all those with parental resp,
ought not be carried out/arranged by one parent and therefore the court should be consulted and a specific issue
