The introduction of parental responsibility saw an updating of the concept of custody with an emphasis on responsibility as well as rights. It also made it easier for non parents (e.g. a grandparent or step-parent) to make decisions in relation to children they care for through the acquisition of parental responsibility. Although 'Parental Responsibility' is a legal term in use in neighbouring jurisdictions, it has a different definition and operates in a different manner under the Children Law here.
Definition Under the law, parental responsibility consists of seven duties of a parent to a child (defined as someone under 18):
- Safeguard and promote the child's health, education, development and welfare.
- Provide care, direction, guidance and control in a manner appropriate to the child's age and understanding.
- To determine all aspects of upbringing.
- Provide a home, either directly or indirectly.
- Maintain relations or regular contact if not living with the child.
- Act as the child's legal representative.
- Safeguard and deal with any property.
- These duties are to be performed as far as is practicable, in the interests of the child and taking account of the child's own evolving capacity. Holder's of parental responsibility have a right to exercise it without interference from others (including the States), unless permitted by law. Example's of where parental responsibility is exercised may include registering a child's birth, consenting to medical/dental treatment, consenting to the child's foreign travel, obtaining a passport, being party to legal proceedings concerning the child and agreeing to a child being accommodated by Services for Children & Young People (the Department).
Who has parental responsibility?
Where a child's mother and father are married to each other at the time of the child's birth or subsequently marry, they will both have parental responsibility for the child. They can only lose their parental responsibility if the child is adopted (or in some very exceptional cases of assisted reproduction). Parents who separate or divorce continue to have parental responsibility.
When parents were not married at the time of birth:
- The mother has parental responsibility for the child.
- The father does not have it, unless he acquires it by:
- marrying the mother;
- being registered on the birth certificate (but only if registered after the law comes into effect);
- entering into a parental responsibility agreement with the mother in the prescribed form;
- if the court makes a parental responsibility order or residence order to him.
- Adoptive parents obtain parental responsibility in place of birth parents, by virtue of the adoption order. Guardian's appointed on the death of a parent acquire parental responsibility for a child. Other individuals e.g. relatives or step-parents can acquire parental responsibility by virtue of certain court orders e.g. a Residence Order or Parental Responsibility Order.The department can acquire parental responsibility by virtue of a community parenting order , an emergency child protection order , a care requirement (so far as necessary to fulfill the terms and conditions of the care requirement) and a secure accommodation order, orders made prior to the new law i.e. a Fit Person Order or Special Care Orders.
Sharing Parental Responsibility
Where more than one person holds parental responsibility at the same time, one may act independently of the others (with some limited exceptions set out below). There is no duty to consult the others or any right of veto for their actions. However, there is a clear concept of co-operation and partnership under the law.For example, one parent with parental responsibility could consent to the child receiving medical treatment or to the child being accommodated by the department without seeking the agreement of the other parent, but in practice they should consult and try to seek such agreement. Holder's of parental responsibility must agree on the following issues:
- naming the child, or changing the name
- removing the child from the jurisdiction of Guernsey and Alderney (with some limited exceptions detailed in Part X of the Law)
- choosing the child's school or religion
- consent to marriage
- Where it is not possible to obtain agreement, on these or any other issues, the court can be asked to make a decision, usually by a party applying for a specific issue order or prohibited steps order.
Parental Responsibility and the Concept of Partnership
In accordance with the welfare principles, the States must promote the upbringing of children with their families and communities provided this is consistent with safeguarding and promoting the child's welfare. This means that a meaningful relationship of working in partnership should be developed.
When the department has parental responsibility by virtue of a legal order, others who hold parental responsibility will retain it. However under Section 51 of the law, the department has the power to determine the extent it can be exercised by other people who hold parental responsibility and it can override the views of other holders although it remains good practice to consult and co-operate e.g. when seeking to change a child's foster placement or seeking medical treatment for the child. Exceptions where the department must seek agreement with other holders of parental responsibility:
- Naming the child or changing the name
- removal from the jurisdiction except for limited purposes (See Part XI concerning placement of a child outside the jurisdiction)
- placement for adoption
- consent to marriage
- The department cannot consent to adoption or appoint a guardian for a child. Where a child is accommodated but not subject to a legal order to the department, the parent will retain parental responsibility and can seek to remove the child by giving notice to the department. The department will not be able to prevent the child's return to their care unless it applies and is granted a legal order.Some other issues on parental responsibility
- Parental responsibility may be delegated but it cannot be surrendered or transferred;
- Section 10(3) of the Law provides that any person aged 16 or over who does not have parental responsibility but has the child in their care eg babysitter, childminder, relative, unmarried father, foster carer, is empowered to do what is reasonable in the circumstances to promote the child's welfare. This could mean seeking medical attention for the child in an emergency but not elective medical treatment. It could also mean refusing to allow a mentally ill parent or intoxicated parent to resume care of a child, but only for such time to enable the police or department to intervene and/ or obtain an appropriate court order.
- Parental responsibility does not affect any other duty a person might have towards a child (eg to pay maintenance)
- The rights of holders of parental responsibility to exercise this on behalf of their children, such as consent to medical treatment and contraception, diminish as the children increase in maturity and age when such children may be able to refuse medical treatment and psychiatric examination. However this refusal to consent can still be overruled by a court. Under the law, a child of aged 12 is presumed capable of forming a considered view about matters affecting them unless shown otherwise.
Parents (without parental responsibility) and significant others
When making plans to protect a child all of those who have a significant relationship with the child should normally be involved. Unless to do so would place the child or another person at risk. This involvement may be from absent mothers or absent fathers and may include grandparents, extended family and friends, who have frequent contact with the child.
Normally the parent who has parental responsibility, and possibly the child (appropriate to their development), would be involved in the discussions about who would be appropriately involved. There may be times when an absent mother or absent father, grandparents extended family and friends are involved without discussion and/or agreement from the parent who has parental responsibility. This would be likely when it is clear that this involvement is needed to ensure the best outcome for the child. Only the person with parental responsibility will be able to make certain decisions, ie for a child to be accommodated or for medical treatment to be obtained. There will be a time when the mother, father (without parental responsibility) or others with a significant relationship would have considerable and relevant information about the child and could be active in preventing harm occurring to the child.
- Child protection
- Youth Offending
- Children with Disabilities