Children and Parental Rights

Until the early twentieth century children had no rights: hence the medieval proverb, “children should be seen not heard”. However, in 1924, following the horrors of World War 1, the League of Nations adopted the Geneva Declaration of the Rights of the Child. That Declaration was subsequently adopted by the United Nations General Assembly, and so the genie was out of the bottle and the rights of children became enshrined in law.

• Laws and treaties now protecting the rights of children can be found in:
• The UN Convention on the Rights of the Child (“UNCRC”) which covers all aspects of a child’s life and sets out the civil, political, economic, social and cultural rights to which all children are entitled.
• The UN Convention on the Rights of Persons with Disabilities which protects the rights of all disabled children, including children and young people.
• The European Convention on Human Rights (“ECHR”) which protects the rights of all people, including children and young people.
• The Human Rights Act 1998 which makes the rights in the ECHR part of domestic law.
• The Equality Act 2010 which makes it illegal to discriminate against children.

Within this family of closely associated rights also sits the Children Act 1989 and the Adoption and Children Act 2002, which both provide for the rights of children by enshrining in law the principle that a child’s welfare is to be the paramount consideration. So, in all instances where a Court has to determine any question with respect to the upbringing of a child, their adoption, or the administration of their property, or the application of any income arising from it, the paramountcy of the child’s welfare is likely to trump and outweigh the rights of the parents.   In other words, a child’s welfare rules upon, or determines, the course to be followed by the Court.

The word “parent” is not defined in the Children Act 1989, but Baroness Hale of Richmond, giving judgement in the House of Lords in Re G (Children) [2006] UKHL 43, suggested that there were three ways a person could become a natural parent of a child: firstly, genetic parenthood, where the parent provides the sperm/egg which produces the child; secondly, gestational parenthood, where the parent conceives and gives birth to a child; and, thirdly, by social and psychological parenthood, where the child demands and the parent provides for the child’s needs and thus makes an important contribution to their welfare.

In most instances, the natural mother combines all three facets: she is the genetic, gestational and psychological parent. By contrast, the natural father frequently combines genetic and psychological parenthood. But there are also parents who are neither genetic nor gestational, but who become the psychological parent of a child. Step-parents ¹  fall in to this particular category.

Parental Responsibility (“PR”) is generally recognised as being the most important aspect of being a parent as it refers to those who have rights, obligations, and authority in respect of the child, and is fundamental to being able to act effectively as a parent. The Children Act 1989 defines PR as being, “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”. Absent PR, a person is not capable of exercising any, or any meaningful, authority over a child.

PR is generally accepted to include, but is not limited to:

• the right and duty to care for the child and provide a home;
• to determine where the child should live;
• to consent to medical treatment or obtain medical treatment for the child;
• to name the child; and,
• to determine where the child should be educated.

All birth mothers automatically have PR, as does the father who was married to the mother at the time of the birth. A father who is not married to the mother, but is (after the 1 December 2003) registered on the child’s birth certificate also has PR. A person who lawfully adopts a child automatically acquires PR too ².

A step-parent will not automatically get PR for a child if they marry or enter in to a civil partnership with the child’s parent. However, such a step-parent can acquire PR by entering in to a formal agreement with those parties who have PR in respect of the child, or alternatively the step-parent can apply to the Court for a Parental Responsibility Order under the provisions of the Children Act 1989.

Births after the 6 April 2009 within civil partnerships involving artificial insemination, and complying with the provisions of the Human Fertilisation and Embryology Act 2008, enable the non-biological female partner to be registered as the child’s parent too; and, in those circumstances, the birth mother and her civil partner will each have PR.   

A biological father who does not automatically have PR can acquire it by marrying the biological mother or by entering in to a formal agreement with her, or by securing an Order, pursuant to the Children Act 1989, giving him PR.  However, such an application will fall to be considered in the light of the child’s welfare.

Issues concerning children’s rights and the exercise of PR (or obtaining PR) are often played out in emotionally charged situations within complex family arrangements. When faced with such issues it is vital to be able to turn to a trusted advisor who fully understands the law in relation to such matters. Here at Roythornes, our specialist Family team has the skills and experience to be able to advise you about all aspects of the law as it affects children and their parents, or those in the role of parents.

Please feel free to contact a member of the Family team to discuss matters. Alternatively, e-mail nickingrey@roythornes.co.uk.

¹ A step-parent in this context means a person who is married to, or in a civil partnership with, a child’s parent. It does not mean couples who are cohabiting.

² Following the passing of the Adoption and Children Act 2002, which came in to effect on the 30 December 2005, individual gay and lesbian people, as well as same-sex couples, now also have the right to adopt children.