Thankfully, most parents who go through the challenges of separation do manage to co-parent and make joint decisions regarding the upbringing of their child or children. Sadly, this is not always the case. The family courts see a large number of cases where in the context of custody or contact disputes, the right to make decisions can become part of the battle ground. The disputes can range from the significant to the relatively trivial.
This article seeks to explain the rights and obligations on separated parents who both have parental responsibility, when making decisions about their child or children.
What is parental responsibility?:
Section 3(1) of the Children Act 1989, defines “parental responsibility” 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”. Parental responsibility can range from for example what religion if any a child should be raised in, what school they should attend or whether they should get vaccinated.
Who can have parental responsibility?
As mother, you will have parental responsibility automatically from the time of the child’s birth (Section 2(1) and (2) CA1989).
As father, you will have parental responsibility automatically from the time of the child’s birth, but only if you were married or in a civil partnership with the mother at the time of the birth (Section 2(1)).
Fathers who do not have parental responsibility automatically can acquire parental responsibility. This can be achieved by being registered on the child’s Birth Certificate; or if the parents enter into a properly drawn parental responsibility agreement; or by an order of the court (Section 4(1)). If the family court were to make a live with order in favour of a father who does not have parental responsibility, then the court must make a parental responsibility order in his favour.
When separated parents each have parental responsibility for their child(ren), how does this work in practice?
The Children Act itself and some court cases that have been decided by the higher courts, offer some guidance as to parents’ rights and obligations:
Section 2(7) establishes the principle that save where joint parental consent is required by law, both parents with parental responsibility have the right to make decisions:
“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”.
In the case of Re H (A Child)(Parental Responsibility: Vaccination)  EWCA Civ 664 the Court of Appeal confirmed that S2(7) does not give either parent who has parental responsibility, dominance over the other. The realities of life mean that each frequently acts alone.
When parents do not get on or do not communicate well, this equal power balance has the potential to cause conflict and confusion.
In the High Court case of A v A  EWHC 142 the Judge gave the following helpful guidance:
“…. in general terms, it must be the case that where two parents share parental responsibility, it will be the duty of one parent to ensure that the rights of the other parent are respected, and vice versa, for the benefit of the child.”
The Judgment in A v A went on to give concrete examples of the extent to which parents should work together in making parenting decisions. The Judge identified three categories of decision making:
- Decisions that could be taken independently and without any consultation or notification to the other parent:
- How the children are to spend their time during contact
- Personal care for the children
- Activities undertaken
- Religious and spiritual pursuits
- Continuance of medicine treatment prescribed by GP
- Decisions where one parent would always need to inform the other parent of the decision, but did not need to consult or take the other parent’s views into account:
- Medical Treatment in an emergency
- Booking holidays or to take the children abroad in contact time
- Planned visits to the GP and the reasons for this
- Decisions that you would need to both inform and consult the other parent prior to making the decision:
- Schools the children are to attend, including admissions applications. With reference to which senior school the child should attend, this is to be decided taking into account the child’s own views and in consultation and with advice from her teachers.
- Contact rotas in school holidays
- Planned medical and dental treatment
- Stopping medication prescribed for the children
- Attendance at school functions so they can be planned to avoid meetings wherever possible
- Age that children should be able to watch videos. ie videos recommended for children over 12 and 18.
Where parents with parental responsibility cannot agree on what is best for the child, is there a role for the court?
In circumstances where parents are unable to agree parenting decisions, the family courts do have jurisdiction to make orders regulating aspects of a child’s upbringing. The most widely used provision is Section 8 of the Children Act 1989. Section 8 enables the family court to make the following orders:
- Child arrangements orders regulating with whom the child is to live, spend time or otherwise have contact with;
- Prohibited steps orders; and
- Specific issue orders.
These provisions are broad enough to cover the wide range of parental disputes that can arise. Section 1(3) requires the court to give paramount consideration to the welfare needs of the child. However, not every parental dispute will justify litigation. It is not the role of the family court to micro manage parenting. In one reported court case where child arrangements were in dispute, the parents were not even able to agree on which railway station platform the child should be handed over. The court declined to make a ruling on this issue.
Any parent considering litigation through the family courts is advised to seek legal advice first.