It has been said that the only freely available legal advice is “it depends”. Of course the world gets by on a day to day basis without giving much thought to legal intricacies. Few areas allow for greater detail in response to an apparently simple everyday question than that of who is responsible for a child. A leading legal text book covers the subject in 22 pages – and then moves on to lengthier consideration of what being responsible for a child means. The aim of this article is to show what some of the intricacies are and then to offer a few simple guidelines to identify parental responsibility.
What is the difficulty?
Some of the more theoretical questions arise from changing technology, such as IVF or surrogate motherhood – although technology has also simplified issues, at least in the case of paternity tests. Some of the more practical questions arise from loosening family structures, such as 1/3 of children being born to unmarried parents and up to 40% of marriages ending in divorce. Parents in second marriages may have a different legal relationship with different children who live in their household even if their day to day relationship is exactly the same.
Schools increasingly raise questions about these issues. Can a new partner give the school instructions or consent when needed? Can a non-resident parent do so when separated? When divorced? What happens when a parent with no contact asserts rights at the school? Does it matter which person is paying for the education?
Who are parents?
The first point is that parents and parental responsibility are not the same thing. This is a shame because identifying parents is relatively simple. The mother is the woman who gave birth to the child. The father is, put delicately, the biological father, subject to the caveat that there is a presumption that the husband of the mother is the biological father. This of course is not always true and the presumption can be rebutted by contrary evidence. The first difficulties with questions of identifying parents can be seen from the fact that this presumption does not apply to cohabitants, however long they have lived together.
What is parental responsibility?
In general parental responsibility (PR) is what matters for schools. Not all parents have PR and not all people with PR are parents.
The Directgov website tells us that “the law does not define in detail what parental responsibility is” but that PR includes: providing a home, choosing and providing for education, being responsible for the child’s property, providing discipline, choosing the child’s religious upbringing, giving consent to medical treatment and controlling confidential information. The Children Act 1989 defines PR 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”. In England PR continues until the child is 18.
In general, PR can be exercised by any person with PR rather than by them all acting together. This principle does not apply for all purposes, eg choosing a country of residence. However there are cases where the Courts have said that consultation is required, for example elective surgery and, in the particular circumstances of the MMR debate, vaccination. Importantly for schools the Court of Appeal held that a father should have consulted a mother with PR before arranging to place the child in a local authority boarding school. Clearly schools should seek involvement from all people with PR.
Who has parental responsibility?
Mothers have PR from birth. Fathers also get PR at birth if they are married to the mother – so long as the marriage is recognised in English law. Difficulties with this most often arise with marriages performed overseas and with some religious marriages. PR is not lost by divorce.
An unmarried father is in a more difficult position. He may have legal responsibilities, such as to maintain his child, but he does not automatically have PR. However it is now much easier for him to get PR. Since 1 December 2003 he will get PR if he is jointly registered with the mother on the birth certificate. This makes things simpler for those aged under 7. The biological father also gets PR if he subsequently marries the mother. Otherwise dad will need a parental responsibility agreement with the mother (in a set form, informal agreements do not count) or a parental responsibility order from a Court.
Step parents do not get PR simply by virtue of cohabiting with or marrying a parent who does have PR. If they are married or are civil partners with a parent who has PR they can get PR through a Court order or by a PR agreement (again in the set form) with all other people with PR.
Adoptive parents (including step parents) automatically get PR when the adoption is completed. Foster parents do not get PR simply be virtue of being foster parents. Local authorities and guardians can also have PR.
It should be noted that the law differs throughout the UK and this article deals with the position in England.
The position in practice
There are three guiding principles. First, the primacy of the interests of the child. Secondly, the need to follow any applicable Court Order, for example dealing with contact between parent and child or determining PR. Thirdly, a commonsense need to put issues into a hierarchy. Schools cannot carry out detailed investigations every time they need parental permission for something. Conversely where decisions may have long-term implications or raise sensitive issues a call to the school solicitors as early as possible is likely to help identify the way forward.
Questions about paternity and the nature of marriage ceremonies are not every day ice-breakers. It is extremely difficult for schools to come up with simple forms acceptable to all parents asking enough questions to determine PR. Anyway schools might quickly find themselves too involved in detailed legal issues which, if they have to be dealt with, need input from the school’s solicitors.
The following two sentences cover most cases. PR is generally held by mothers, by the child’s father if married to the mother and by adoptive parents. It is not held by step-parents (even if married to a parent with PR), grand-parents, or any other family members, unless specific arrangements have been made.
The other practical point to remember is that statute has extended the definition of “parent” for some purposes. For example, where the Education Act 1996 applies (largely, but not only on issues concerning local authorities rather than schools, such as school attendance and SEN) “parent” includes any person with parental responsibility and any person “who has care of” the child (s.576 Education Act 1996). In Fairpo v Humberside CC  ELR 12 this was said to mean “someone involved in the full-time care of the child on a settled basis”.
Asking parents about PR
PR cannot be given by a signed consent to the school. It is determined by specific statutory tests. However it does make sense to ask parents to confirm in writing who has PR and who has authority to give the school instructions. The law makes two relevant provisions. They are not pretend forms of PR but do offer some practical assistance in everyday issues that schools face.
First a person who does not have PR but “has care of the child” can “do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare” (s.3 (5) Children Act 1989). What is “reasonable” will not include making significant decisions but could allow minor decision making. In one case a Judge noted without criticism that a school had refused to accept authority on this basis from a grandparent who was de facto carer for the child to go on a school trip.
Secondly a person with PR cannot transfer that PR but “may arrange for some or all of it to be met by one or more persons acting on his behalf” (s.2(9) Children Act 1989). These arrangements are informal and can be changed at will. They are one basis of the authority of schools.
The Data Protection Act 1998
Perhaps the most common purely administrative question from schools is about the Data Protection Act (DPA). In general this governs most issues about disclosure of data (although there are specific regulations about the disclosure of school records by maintained schools).
The DPA gives “data subjects” the ability to make “subject access requests” from “data controllers”. This offers a good example of what PR is really about. Data about a child is the child’s data and the right of access is the child’s. While this right is often exercised for young children by those with PR it is – like consent to medical treatment – a parental power being exercised for the child.
A help sheet on the Information Commissioner website explains that the DPA does not set an age limit for a subject access request, that this is to be assessed on a case by case basis but that children from age 12 are expected to be mature enough to understand a request for information. That website also states “If you are confident that the child can understand their rights, then you should respond to the child rather than a parent”. Thus, if a child has capacity the request should be made by them or with their consent.
Where relationships in the family have broken down schools may need advice to help them consider notifying the child and other people with PR that a request has been made and to consider whether the disclosure sought is for the benefit of the child, rather than the requesting parent.
One leading family law text suggests that data controllers (ie schools) should “give careful thought” to DPA requests. This can’t be taken to suggest that schools can reject apparently valid requests but it does show that, once you move outside day to day co-operation about school records and reports, the DPA raises complex issues. It is subject to numerous protections and exemptions beyond these statements of general principle and beyond questions about PR and advice will be needed in complex and sensitive cases.
Conclusion – children making their own decisions
One of the cases everyone who works with children knows about is Gillick v. West Norfolk Area Health Authority, a House of Lords case from 1986. The Lords concluded that doctors could prescribe contraceptives to girls under 16 “provided the girl had reached an age where she had a sufficient understanding and intelligence to enable her to understand fully what was proposed”. This reflected earlier cases, for example concluding that “the right of a parent … starts with a right of control and ends with little more than advice”.
However the position is not simple. The Courts have remained willing in exceptional cases to order compulsory medical treatment of “Gillick competent” children which would not be ordered of adults. Although Gillick competent children can give consent their refusal cannot veto their parents’ consent, albeit few doctors would treat an older child in the face of a direct refusal from the child without a Court order.
What are the implications for schools? There are medical, counselling and advisory aspects of the relationship with older children where the school might not need approval from those with PR. Indeed in some cases (such as problems with parents) it might be inappropriate for children of any age. The starting point is for a school to tell parents that it offers these services without specific parental approval. Thereafter staff who carry out these roles should be familiar with the detailed professional guidance available about confidentiality with children – including when and how to raise matters with statutory child protection services.
The difficulties of mediating the parent – child relationship may make working out who has PR seem to be the easy bit.
This article was written by David Lawson
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