Parental reps and child welfare

Question 1

What does s 3 1 of the Children act say about child welfare

Answer 1

´ S3(1) Children Act 1989: ‘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.’
´ The Children Act 1989 sets out who has parental responsibility and the means by which those who do not have parental responsibility may acquire it.
´ English law distinguishes in the allocation of parental responsibility between married and unmarried parents.
´ Parental responsibility ends when a child attains the age of 18.

´ The concept of parental responsibility is used to refer to parent’s legal rights and responsibilities
´ The statute uses the language parental responsibility not parental rights.
´ Sends an important message to parents that they should understand their role as being about responsibilities rather than rights.

Question 2

Who has parental responsibility

Answer 2

´ Parental responsibilities can be held by a person or designated organisation with the relevant powers to:
´ Decide a child’ education and the school they attend or whether they are home schooled
´ Decide a child’s religion (if any)
´ Consent to a child receiving medical treatment
´ Consent to adoption of a child
´ Consent to name or rename a child
´ Approve a child’s diet
´ Apply to a court for a court order in relation to the child

Question 3

What does s2 Childrens Act 1989 say about PR

Answer 3

(1) Where a child’s father and mother were married to or civil partners of each other at the time of his birth, they shall each have parental responsibility for the child.
(1A) Where a child—
(a) has a parent by virtue of section 42 of the Human Fertilisation and Embryology Act 2008; or
(b) has a parent by virtue of section 43 of that Act and is a person to whom section 1(3) of the Family Law Reform Act 1987applies,
the child’s mother and the other parent shall each have parental responsibility for the child.
(2) Where a child’s father and mother were not married to or civil partners of, each other at the time of his birth—
(a) the mother shall have parental responsibility for the child;
(b) the father shall have parental responsibility for the child if he has acquired it (and has not ceased to have it)] in accordance with the provisions of this Act.]
(2A)Where a child has a parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008 and is not a person to whom section 1(3) of the Family Law Reform Act 1987 applies—
(a) the mother shall have parental responsibility for the child;
(b) the other parent shall have parental responsibility for the child if she has acquired it (and has not ceased to have it) in accordance with the provisions of this Act.]

(5) More than one person may have parental responsibility for the same child at the same time.
(6) A person who has parental responsibility for a child at any time shall not cease to have that responsibility solely because some other person subsequently acquires parental responsibility for the child.
(7) Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child.

Question 4

What does s4 Children Act 1989 say about fatherhood and PR

Answer 4

´ Acquisition of parental responsibility by father.
´ S 4 children Act 1989
(1)Where a child’s father and mother were not married to or civil partners of, each other at the time of his birth the father shall acquire parental responsibility for the child if—
(a) he becomes registered as the child’s father under any of the enactments specified in subsection (1A);
(b) he and the child’s mother make an agreement (a “parental responsibility agreement”) providing for him to have parental responsibility for the child; or
(c) the court, on his application, orders that he shall have parental responsibility for the child. A Parental Responsibility Order (PRO)

Question 5

What does s 4 1 c say about Paternal Resp

Answer 5

´ S4(1)(c) Children Act 1989
´ These will only be made to a court if the mother opposes the order for parental responsibility.
´ If she were in agreement then she and the father would apply for a parental responsibility agreement order s 4 (1) (b) Children Act 1989
´ If she is not in agreement, this may be because she does not want the father interfering in every aspect of her life or the child’s life, and maybe negatively, and maybe opposing her parenting decisions.
´ Herring suggests that parental responsibility is insufficiently defined, and more is needed to establish what within a parental responsibility order a father can and cannot do if he is no longer living with the child.

Question 6

What is the CA guidance on PR in RE H Minors 1991

Answer 6

´ “In considering whether to make an order…the court will have to take into account a number of factors, of which the following will undoubtedly be material (although there may well be others, as the list is not intended to be exhaustive): 1)The degree of commitment which the father has shown towards the child; 2)The degree of attachment which exists between the father and the child; 3)The reasons of the father for applying for the order.”

Question 7

What does Ward LJ say in regard to PR and appea in RE S 1995l

Answer 7

´ “(1) a parental responsibility order gave status to an unmarried father. It moved the emphasis towards responsibility for the child rather than rights over it. The order had no effect on the day-to-day management of the child’s life and any dangers to the welfare of the child could be prevented by orders under the Children Act 1989 s.8 ; (2) it was important that a child should not feel that there was some reason why the father could not fulfil his role, and (3) applying those principles to the present case, the father satisfied the burden of proof by fulfilling the requirements of commitment and attachment necessary under the Children Act 1989 s.4 . His convictions had no great effect on the day-to-day life of the child. The first instance judge had failed to appreciate that the scope F would have to interfere with the management of the child was not a material factor. She also failed to appreciate the emphasis placed upon the child’s knowledge that her father was committed enough to want parental responsibility.”
´ “Ensure that the law confers upon a committed father that stamp of approval, lest the child grow up with some belief that he is in some way disqualified from fulfilling his role and that the reason for the disqualification is something inherent which will be inherited by the child, making her struggle to find her own identity all the more fraught.”

Question 8

What does Re D 2014 say about PR

Answer 8

´ Status of father is not enough to grant parental responsibility; parenthood is not the same as having PR, and the two needed to be separate Ryder LJ. PR is based on considerations of the child’s welfare.

Question 9

What does Helen Reece (fem academic) say about pr and degradation

Answer 9

Helen Reece leading feminist academic:
´ Suggested that because it was almost unheard of for parental responsibility not to be granted to all fathers,
´ That parental responsibility was being degraded.
´ This issue begs the question whether if parental responsibility is handed out to almost every father, who applies, whether fathers should simply have automatic parental responsibility.

Question 10

What does Re M 2013 say about PR

Answer 10

´ The court was concerned that parental responsibility would be abused by the father.
´ Although in previous case law, parental responsibility was granted as a status to acknowledge the father’s parental role, it was not a stand alone factor.
´ There is no presumption that a PRO will always be made on a father’s application, (although it is rare not to be granted.
´ The court must focus on the child’s welfare (Ryder LJ)
´ In this case the balancing exercise between welfare and granting a PRO was in favour of the child’s welfare and not the father’s need for a PRO.

Question 11

What case tells us that the Childs best interests must be considered in a PRO

Answer 11

Re W 2013/ CA 1989 s 1 1

Question 12

What are some conditions on paternal RO

Answer 12

´ As mentioned before, the actual room for a father to play a part may need to be limited
´ The father may themselves be controlled in their involvement by the conditions to an order.
´ Re D (Contact and Parental Responsibility Lesbian Mothers and Known Father) [2006]
´ High Court granted a restricted form of parental responsibility to the applicant and child’s biological father, Mr B.
´ The respondents, Ms A and Ms C—a lesbian couple who are D’s co-mothers and primary carers —objected to the application.
´ By awarding Mr B a contingent form of parental responsibility, Judge Black felt that he was taking a ‘creative’ approach to parental responsibility that would accommodate Mr B’s need to be recognised as D’s father, as well as reflecting the ‘paramount position of the family comprising the two mothers and the [child]’

Question 13

Do fathers auto get PR

Answer 13

No

Question 14

What does s4ZA of CA 1989 say

Answer 14

(1) Where a child has a parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008 and is not a person to whom section 1(3) of the Family Law Reform Act 1987 applies, that parent shall acquire parental responsibility for the child if—
(a) she becomes registered as a parent of the child under any of the enactments specified in subsection (2);
(b) she and the child’s mother make an agreement providing for her to have parental responsibility for the child; or
(c) the court, on her application, orders that she shall have parental responsibility for the child.

Question 15

What does s4 a ca 1989 say about parents

Answer 15

´ For the provision to apply, the child’s parents must have parental responsibility for the child.
´ The parent and step-parent can agree that the step-parent shall have parental responsibility. Although if the child’s other parent also has parental responsibility the agreement of both parties is required.
´ Such an agreement is a parental responsibility agreement s4(1)(b)

Question 16

What other bodies may have pr

Answer 16

Adopting parents under Adoption and Children Act 2002/ Local authority/guardian

Question 17

Can PR be surrendered

Answer 17

no unless court order

Question 18

What do sections 1 1 and 1 3 of the CA 1989 say in regard to the importance of child welfare

Answer 18

´ S1(1) Children Act 1989 welfare of the child is the paramount consideration.
´ S1(3) Children Act 1989 welfare checklist: a court shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c)the likely effect on him of any change in his circumstances;
(d)his age, sex, background and any characteristics of his which the court considers relevant;
(e)any harm which he has suffered or is at risk of suffering;
(f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g)the range of powers available to the court under this Act in the proceedings in question.

Question 19

What does s 1 of the CA 1989 say about child welfare

Answer 19

1 Welfare of the child
(1) When a court determines any question with respect to—
(a) the upbringing of a child; or
(b) the administration of a child’s property or the application of any income arising from it,
the child’s welfare shall be the court’s paramount consideration.
(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child

Question 20

Which act introduced the presumption of parental involvement

Answer 20

S11 of the Children and Families Act 2014 (CFA 2014) amended S1 of the Children Act 1989 (ChA 1989) and introduced a presumption of continued parental involvement

Question 21

List what is said in section 2A CA 1989

Answer 21

[(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.
(2B) In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.]

[(6) In subsection (2A) “parent” means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned—

(a) is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and
(b) is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.
(7) The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).]

Question 22

What is included in the welfare checklist in s3 ca 1989

Answer 22

(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.

Question 23

What does s4 CA 1989 say about the circumstances that the welfare list can be applied

Answer 23

(a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or
(b) the court is considering whether to make, vary or discharge [a special guardianship order or] an order under Part IV.

Question 24

What does s5 1989 CA say about no order principles

Answer 24

(5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.

(a) wishes and feelings of the child (in the light of age and understanding)
The court is obliged to consider the ascertainable wishes and feelings of the child taking into account the age of the child and their understanding of the situation.
1. What are child’s wishes?
2. Are they of sufficient age or maturity for significant weight to be attached to their wishes?

Question 25

What is Gillick competence

Answer 25

Gillick Competence
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Contraceptive advice to a minor – landmark decision
Lord Scarman suggested that a minor will be able to consent to treatment if they demonstrate “sufficient understanding and intelligence to understand fully what is proposed”

Question 26

Is considering a Childs feelings a UN right of 1989

Answer 26

Yes, article 12

Question 27

What Is more important- a Childs wishes or welfare

Answer 27

WELFARE-Re S (children) (contact: order for contact) [2010] All ER (D) 121 (May), [2010] EWCA Civ 447

Question 28

Can vaccinations be court ordered in interest of welfare

Answer 28

yes- R e C 2021/ F v F

Question 29

What does Re KP say about judges meeting with children in relation to welfare cases

Answer 29

The Court in that case noted that it remains an essential principle of the guidance and the relevant authorities that a meeting with a child is not for the purpose of gathering evidence.
Re KP (a child) [2014] EWCA Civ 554, [2014] 2 FLR 660

Question 30

Can needs be physical and emotional

Answer 30

yes, emphasis in Re V that welfare is still overriding consideration though

Question 31

List some emotional needs

Answer 31

Degree of attachment to parent or siblings
Strong arguments for not separating siblings
C v C brothers and sisters should wherever possible, be brought up together, so that they are an emotional support to each other
However sometimes, maintaining the status quo for a child is more important than being with siblings
Note - no presumption in favour of a biological parent.
C v C (Minors: Custody) [1988] 2 FLR 291

Question 32

List some educational needs

Answer 32

educational needs have been held to include not just the child’s attendance at school, but also a carer’s attitude to school, homework and after school activities.
Religion has also been held to be included under educational needs.
Re O (a minor) (care proceedings: education) [1992] 4 All ER 905
Re J (child’s religious upbringing and circumcision) [1999] 2 FLR 678

Question 33

What is the argument for children staying with a parent for a long period of time

Answer 33

The longer the child has been with the parent the stronger the argument for maintaining the status quo. 
Where parties have only just separated and the absent parent has maintained regular contact with the child, it is hard to establish a status quo argument.
It should be noted, however, that there is no principle that where a child has been detained by the absent parent beyond the agreed period, that the child be automatically returned to the parent with care pending the court decision as to the child's future.
Re J (A Minor) (Interim Custody) [1989] 2 FLR 304

Question 34

Is a Childs age/sex/gender/charcateristics relevant to where they should reside

Answer 34

A child's age and gender is relevant to determining with whom they should reside. Although there is no presumption or principle that a mother should have the care of young children, the advantage to a very young child of being with its mother is a consideration that must be taken into account. 
Re S (a minor) (custody) [1991] 2 FLR 388

Question 35

What did the HoL summarise as the best approach regarding sex/characteristics/gender etc in Brixey v Lynas 1996

Answer 35

the advantage to a very young child of being with its mother is a consideration which must be taken into account in deciding where lie its best interests in custody proceedings in which the mother is involved. It is neither a presumption nor a principle but rather recognition of a widely held belief based on practical experience and the workings of nature. Its importance will vary according to the age of the child and to the other circumstances of each individual case such as whether the child has been living with or apart from the mother and whether she is or is not capable of providing proper care. Circumstances may be such that it has no importance at all. Furthermore it will always yield to other competing advantages which more effectively promote the welfare of the child. However, where a very young child has been with its mother since birth and there is no criticism of her ability to care for the child only the strongest competing advantages are likely to prevail.’

Question 36

Is harm/risk of harm considered and if so what is defined as harm

Answer 36

Harm has the same meaning as it does for the purposes of establishing the threshold conditions for care and supervision orders, and accordingly means both ill treatment and the impairment of health or development, which covers both physical and psychological trauma.
It also covers sexual abuse, which, if proved, is likely to be a significant factor, but even so may not inevitably mean that the abuser should not, for example, be allowed contact.

Definition of harm has been extended to include 'impairment suffered from seeing or hearing the ill-treatment of another'. This amendment is intended to emphasise the potential harm caused to a child by witnessing violence perpetrated by one parent on another. 
The court must consider, at all stages of an application for a child arrangements order (CAO), whether domestic violence is raised as an issue. FPR 2010, PD 12J sets out what the Family Court should do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence or abuse.
The required standard of proof is the balance of probabilities. 
Re B (children) (sexual abuse: standard of proof) [2008] 2 FLR 141

Question 37

Is parental capability a welfare consideration

Answer 37

yes