Tag Archives: parental responsibility

Parental Responsibility

What does it mean? And who has it?

Please see this free guidance from the Custody Minefield for further information. 

Parental responsibility (PR) was introduced by section 2 of the Children Act 1989. It replaced the concept of parental rights in section 4 of the Family Law Act 1987.

It is defined at section 3(1) of the Children Act 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

There is no other statutory definition of what PR means. It is often said that this is a matter of ‘status’ rather than ‘power’. If you have parental responsibility, you are responsible for making decisions in your child’s best interests – but that doesn’t mean you can veto the decision of anyone else who has PR (unless you have a Special Guardianship Order); nor you can attempt to ‘micro manage’ the daily decisions made by another parent.

The court described PR in this way in the case of Re D [2014]:

The concept of parental responsibility describes an adult’s responsibility to secure the welfare of their child which is to be exercised for the benefit of the child not the adult. The all encompassing nature of the responsibility underpins one of the principles of the Act which is the ‘no order’ principle in section 1(5) CA 1985: the expectation that all other things being equal parents will exercise their responsibility so as to contribute to the welfare of their child without the need for a court order defining or restricting that exercise. That the status relates to welfare not the mere existence of paternity or parenthood is clear from the decision in Smallwood v UK.

The court described it in this way in Re W (Direct Contact) [2012] EWCA Civ 999 (see para 80):

Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents. By stressing the ‘responsibility’ which is so clearly given prominence in the Children Act 1989, section 3 and the likely circumstance that that responsibility is shared with the other parent, it is hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post separation contact than may hitherto been the case.

PR in practice

Generally, if you are a parent with PR you should expect to be consulted by the other parent about major matters such as education and health issues. If different people who hold PR can’t agree, they will have to go to court to ask the Judge to decide what to do. The following are examples of situations where you need to inform and consult the other parent before making a decision. Day to day decisions about what time the child gets up, what he has for breakfast etc are not usually issues that you have to consult with the other parent about.

  • education – decisions about applying or attending school, which parent will attend what school functions and when.
  • which parent is spending what time with children in school holidays
  • planned medical or dental treatment which is more than just routine check ups
  • any decision to stop treating a child with prescribed medication.

 

Taking children abroad

You can only take your child out of England and Wales without the consent of anyone else who has PR for 28 days IF you have a child arrangements order (previously called a residence order).

If you don’t have such an order or you are out of the country for longer, and you don’t have the consent of the other parent with PR, you could be committing the offence of child abduction. Many countries will now require that you travel with a letter from the other parent, confirming that they consent to their child travelling.  See this article for further discussion.

Many parents are not aware of this and mistakenly think they do not need the other parent’s permission. If the other parent won’t consent, you will have to apply to court for a Specific Issue Order.

If you have a Special Guardianship Order (SGO) you can take the child out of the jurisdiction for up to 3 months without consent.

 

Different treatment of mothers and fathers

Men and women are treated differently when it comes to PR. Mothers and married fathers have PR automatically. An unmarried father has parental responsibility for his child by:

  • being registered as the child’s father on his birth certificate,
  • by a parental responsibility agreement entered into between the parents or
  • by a court order. An unmarried father can only lose parental responsibility by an order of the court to that effect.

Section 111 of the Adoption and Children Act 2002 [ACA 2002] amended the Children Act 1989 to give PR automatically to unmarried fathers who are on the child’s birth certificate after 1 December 2003.  See section 4(1).

The reasons for this were described in Re M (A Child) sub nom PM v MB and M (A Child) [2013] EWCA Civ 969 at [14]:

Since 1 December 2013 and by section 4(1) CA 1989 as inserted by section 111 Adoption and Children Act 2002, an unmarried father acquires parental responsibility by the inclusion of his name on the child’s birth certificate. That legislative change accompanied society’s recognition of and expectations for the exercise of parental responsibility by parents who are not married or in a civil partnership and who have separated with the consequence that the child does not live with one or other of them. It has become more common for parental responsibility to be considered by a court before other substantive welfare decisions are made because it is an important status which is an incident of the family and private lives of the adults and child concerned and which is reflected in the way in which parents should exercise their responsibilities for their child. It should be rare for a father not to be afforded this status.

Neither mothers nor married fathers can have their parental responsibility removed, unless an adoption order is made. This distinction has been found compatible with Article 8 of the ECHR. (See Smallwood v UK (29779/96) (1999) 27 EHRR CD 155).

Unmarried fathers can have their PR removed if the court finds this is in the best interests of the child.For a case where PR was removed from an unmarried father who had pleaded guilty to sexual offences against the mother’s other children and caused huge emotional devastation to the family, see Re D [2014] EWCA 315. 

Consequences for PR of different orders

A care order

The key distinction between care and supervision orders is found under section 33(3) of the Children Act. Only a care order can gives the LA parental responsibility and the power to decide how any one else can exercise their parental responsibility. It is often said that a care order allows the LA to ‘share’ parental responsibility but the more realistic description is that the LA is now in the driving seat when it comes to making decisions about the child.

The LA can control parents’ exercise of their parental responsibility when ‘necessary’.
However, under section 33(4) the LA can only use their powers to control other people’s parental responsibility if to do so is necessary to safeguard or promote the child’s welfare. Together with the considerations of Article 8 of the ECHR and the need to act proportionally, the LA will need to think seriously about whether or not what it proposes is ‘necessary’.

For further information about the impact of care and supervision orders, see this post.

A special guardianship order

The holder of the SGO has ‘enhanced’ PR and can override the wishes of others with PR. See 14(C) of the Children Act. For more information on SGOs, see this post.

An adoption order

This will sever all legal ties between the child and the birth family and the parents will no longer have PR.

Disputes between parents about seeing their children

Can courts force parents out of intractable contact disputes?

This post looks at the law in cases following the parents separation, when the parents can’t agree about how the children should spend time with each of them. In cases where there is no evidence that contact with a non-resident parent would harm a child yet the resident parent claims contact would not be in the child’s best interests, can courts force parents out of their entrenched positions?

Sarah Phillimore, barrister at St John’s Chambers, looks at the issue and offers some practical advice.

This article was published by Lexis on 19th May 2015 –  you can get more articles like this from Lexis at this web address www.lexisnexis.com/uk/lexisps

 

To what extent can or will the courts intervene to force parties out of entrenched positions?

Statute Law

The relevant statutory framework is found at section 1(1) and 1(3) of the Children Act 1989 (CA 1989). The child’s welfare is the paramount consideration and the court must have regard to the welfare checklist.

Section 8 allows the court to make what used to be called ‘contact’ and ‘residence’ orders but which are now ‘child arrangements orders’ following the Children and Families Act 2014 (CFA 2014).

The CFA 2014 also amended section 1 of the CA 1989 to include that when a court is considering a section 8 order, it must presume, unless the contrary can be shown, that the involvement of a parent in the life of a child will further the child’s welfare. ‘Involvement’ quite explicitly is not linked to any particular division of a child’s time. This amendment is thus very far from what father’s rights campaigners wanted; there is no presumption that children must spend their time 50/50 with each parent. It is difficult to see what practical change is provided by this amendment, as it offers a rebuttable presumption that is a reflection of existing law and practice.

General principles from case law.

The following cases provide general principles:

Each case is unique on its own facts and requires careful scrutiny. However, there are general principles which are usually applicable to every case:

  • the court is concerned with the interests of the mother and the father only in so far as they bear on the welfare of the child.
  • It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living. Contact should thus be terminated only in exceptional circumstances.
  • The court has power to enforce orders for contact, which it should not hesitate to exercise where it judges that it will overall promote the welfare of the child to do so.
  • The state has positive obligations to protect the Article 8 rights of parents and children. Thus, the judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
  • There are rare cases where the court decides that there cannot be immediate direct contact because that would injure the child’s welfare, see Re D (A Minor) (Contact) [1993] 1 FCR 964 at pp 971G–972A per Waite, LJ.
  • If there cannot be immediate direct contact there should be indirect contact so that the child grows up knowing of the love and interest of the absent parent with whom, in due course, direct contact should be established
  • It is an important part of the obligations of being a parent that the parents take responsibility for making contact work – see paras 72 onwards of Re W [2012].

 

Potential problems with the courts’ approach.

In Re H-B (Contact) [2015] EWCA Civ 389, the court heard that direct contact with the father and his two daughters had stopped in 2008. There was an incident in which the father’s new wife had been angry with the older girl and grabbed her, causing a superficial injury. The father appealed against the refusal of his application for direct contact. Both parents were found to have behaved poorly.

The President of the Family Division considered the obligations upon parents when a child refuses contact with the other parent.  See paragraph 75:

the responsibility of being a parent can be tough, it may be ‘a very big ask’. But that is what parenting is all about. There are many things which they ought to do that children may not want to do or even refuse to do: going to the dentist, going to visit some ‘boring’ elderly relative, going to school, doing homework or sitting an examination, the list is endless. The parent’s job, exercising all their parental skills, techniques and stratagems – which may include use of both the carrot and the stick and, in the case of the older child, reason and argument –, is to get the child to do what it does not want to do. That the child’s refusal cannot as such be a justification for parental failure is clear: after all, children whose education or health is prejudiced by parental shortcomings may be taken away from their parents and put into public care.

  1. I appreciate that parenting headstrong or strong-willed teenagers can be particularly taxing, sometimes very tough and exceptionally demanding. And in relation to the parenting of teenagers no judge can safely overlook the teaching of Gillick v West Norfolk and Wisbech Area Health Authority and anor [1986] AC 112, in particular the speeches of Lord Fraser of Tullybelton and Lord Scarman. But parental responsibility does not shrivel away, merely because the child is 14 or even 16, nor does the parental obligation to take all reasonable steps to ensure that a child of that age does what it ought to be doing, and does not do what it ought not to be doing. I accept (see Cambra v Jones [2014] EWHC 2264 (Fam), paras 20, 25) that a parent should not resort to brute force in exercising parental responsibility in relation to a fractious teenager.  But what one can reasonably demand – not merely as a matter of law but also and much more fundamentally as a matter of natural parental obligation – is that the parent, by argument, persuasion, cajolement, blandishments, inducements, sanctions (for example, ‘grounding’ or the confiscation of mobile phones, computers or other electronic equipment) or threats falling short of brute force, or by a combination of them, does their level best to ensure compliance. That is what one would expect of a parent whose rebellious teenage child is foolishly refusing to do GCSEs or A-Levels or ‘dropping out’ into a life of drug-fuelled crime. Why should we expect any less of a parent whose rebellious teenage child is refusing to see her father?’ 

 

The ‘tough’ approach of the court cannot however be a a solution to the problem of intractable contact disputes, because it does not adequately or even at all address the following circumstances:

  • The increasing autonomy of the older child.
  • The resident parent who simply will not or can not support a relationship with the other parent.

The older child

For older children, the suggestions by the President that it is a straightforward matter of simply exercising a bit of parental muscle to bribe or compel a child, does not reflect the reality of the child’s growing autonomy. Various cases demonstrate that it is likely that the child will simply refuse to do what is expected and may even react in quite extreme ways to the expectation: see for e.g Re K (Children) [2014] EWCA Civ 1195 where the children simply ran away.

Of course, parental responsibility does not ‘shrivel away’ when dealing with a Gillick competent teenager, but as a child’s autonomy develops, the ability of a parent to impose his or her will inevitably decreases. A parent simply cannot dictate to a 15 year old as if he were 5 or even 10 years old. To do so is likely to be emotionally abusive and ineffective.

This is reflected in section 9(6) of the CA 1989; section 8 orders will only be made for children over 16 if the circumstances are ‘exceptional’.  In reality, many judges will be wary of imposing orders upon teenagers even younger than 16; recognizing that they can and do ‘vote with their feet’.

The parent with whom the child lives does not support contact

This second part of the problem is not even touched upon in re H-B; the mindset of the resident parent and the impact of this on the child. The likely reality in many cases is that the resident parent has consistently exposed the child to a very negative view of the absent parent. In terms of the impact of this on the child, it probably doesn’t matter what motivates the resident parent, be it genuine belief or something more malicious. The child will absorb the resident parent’s reality. What else can they do?

These problems are then further compounded if the child has not seen the absent parent for some time and/or was very young at the last meeting and therefore has little or no independent memory of the absent parent.

In such cases, experts consider it unlikely – even impossible – that a child living in such circumstances can start thinking positively about the absent parent. The resident parent will assert that it is simply not in the child’s best interests to have this positive view. It is not possible to force therapeutic work on an unwilling resident parent.

 

What can lawyers to either stop this happening or intervene positively when it does?

Unfortunately, it is my view that the ability of lawyers or the courts to have much positive impact on the more extreme examples of intractable dispute, is very limited. This is because these are not legal problems. They arise out of the psychological vulnerabilities of one or both of the parents.  Even if parents could be persuaded to go to family therapy or family mediation it is unlikely that many could afford to do this and no state agency can be compelled to pay. The court room is clearly a very unsuitable arena to try to deal with the often toxic emotional fall out from failed adult relationships.

However, there are elements to these proceedings that the lawyer can influence and the court can attempt to dictate, which may have a positive influence on the outcome – or at the very least reduce the time taken and the emotional and financial costs incurred. See further the judgment of Hedley J in re E (A Child) [2011] EWCH 3251 at paragraph 11 onwards and A (A Child) [2013] EWCA Civ 1104.

I suggest that the fundamental requirements are:

  • Careful analysis of the issues and the available options;
  • Which feeds into a realistic timetable, avoiding drift

Intractable contact disputes that go horribly wrong usually have dragged on over many years. This increases the child and the resident’s parent aversion to the whole process; they simply want it to end. Lawyers can help by trying to identify as soon as possible which of their cases are likely to turn into intractable disputes and then being clear sighted about the options which are realistic in their case. It is essential at the earliest possible stage, all agree a clear timetable for either achieving contact or recognizing that it is not achievable whilst the child remains with the resident parent. There will then need to be full and honest appraisal of the likely success if a child is removed from the resident parent – either into foster care or to care of non- resident parent.

Proper analysis of the available options and the impact of each on the child’s welfare requires knowledge and understanding about what is in reality available to a family; little point in considering ‘specialist family mediation’ for example, if there are no providers within a reasonable distance or no one can afford to pay for it.

The following considerations may help this process:

  • Clear analysis at the earliest stage as to the degree and nature of opposition to contact. How objective and reasonable is the opposition? How flexible are the parents prepared to be? How quickly did problems escalate? Warning bells will start to ring at an early stage and should not be ignored.
  • If the non-resident parent does not accept the objections raised by the resident parent, consider an early fact finding so that there is a clear understanding of potential problems. Courts are often reluctant to go down this route (see Re E, para 11), worried that parents may simply focus on allegations against each other rather than the welfare of the child. However, this risk needs to be considered against the problems that can be caused by allegations that are never confronted and which linger on throughout the proceedings, to the detriment of any resolution;
  • If a case shows signs of being intractable, judicial continuity is very desirable;
  • Robust enforcement of any contact orders made at an early stage – don’t let this drift, bring non-compliance straight back to court. Be clear about why it hasn’t worked – did the resident parent fail to encourage? Did the non-resident parent fail to comply, for e.g. with indirect contact?;
  • The non-resident parent should be prepared to make reparation for any behaviour that has contributed to the resident parent’s distrust – not every case involves an absent parent who is wholly without reproach;
  • Making timely decisions about when a guardian or expert evidence is required. If the resident parent for example refuses to accept the outcome of a finding of fact this is usually the time when it is abundantly clear more needs to be done;
  • Exploring if there is any possibility of any help via therapeutic intervention/specialist mediation and how this is to be funded, etc
  • If it becomes clear that contact is not achievable whilst the child is living with the resident parent, there must be proper analysis of the available options and the impact on the child’s welfare of each – for example, should the court be invited to make an order under section 37 of CA 1989 for an interim care order so that the child goes into foster care?

However, the fundamental issue will always remain; these are not legal problems. Lawyers and the courts have poorly designed and often ineffectual tools at their disposal. But unless and until a more effective arena is available to tackle the problem of intractable contact disputes, we will have to do our imperfect best.

 

Further reading

See Re H (Children) [2015 EWCA Civ 1216 for another sad example of the limitations of the court process in attempt to resolve disputes between parents.

See this article from the Custody Minefield about how intractable contact disputes can go wrong or get worse.

 

The Social Worker tells me my child needs medical treatment?

This post looks at the legal and practical difficulties parents may face if they disagree with doctors or social workers about the medical treatment their child needs.  Doctors cannot examine or treat anyone without getting consent, unless the situation is life threatening and urgent. Medical intervention can range from the trivial to the really serious and the further up the scale of intervention you go, the more likely you are to encounter disagreements about the best way forward. Who gets to decide and how?

The case of Ashya King

For more detail about Ashya King’s case see this post from the Transparency Project.

The  issue of managing disagreements between parents and doctors came to the fore in September 2014 with the case of Ashya King,  a five year old boy who was being treated for cancer in the UK. His parents and the hospital could not reach agreement about the best treatment options for Ashya; his parents removed him from the UK to seek treatment abroad and were then arrested after the hospital informed the police and the local authority (LA) of their disappearance.

The LA applied for Ashya to be made a ward of court, which meant that no decision could be taken about his treatment without permission from the court. Upon arrest, Ashya’s parents were kept apart from their son for several days. The case caused enormous concern both in the UK and internationally. Of particular concern is the parents’ view that they had no choice but to leave in the way they did as they were alarmed by the hospital suggesting that the LA would need to get involved, even to apply for an emergency protection order. It is clear that the working relationships between the parents and the doctors must have seriously deteriorated, if not broken down completely.

When the case came before Baker J on September 8th he discharged the wardship. He found that the earlier decision to make Ashya a ward of court was justified on the information that the court had before it. But now the position had changed; there was a clear treatment plan which was not opposed by either the LA or Ashya’s guardian. The Judge could not comment on the desirability of issuing a European arrest warrant which resulted in the parents’  detention, but commented that it was clearly not in Ashya’s best interests to have been separated from his parents.

 

So what happens if you disagree with the treatment proposed by professionals?

The importance of consent.

The fundamental principles of consent were discussed in the case of A (Children) [2000]. Every adult person of sound mind has the right to say what can and can’t be done to his body. Without consent, medical examinations or procedures are unlawful – they are either the criminal offence of assault or the civil offence of trespass to the person. Therefore it is very clear that consent must be given to any kind of treatment or examination unless its an emergency and doctors say they had to act out of ‘necessity’.

Consent is only valid if it is:

  • voluntary – given freely;
  • informed – understanding the implications of consenting;
  • and the person giving it has capacity – they are capable of making decisions.

 

Who does not have capacity?

  • Children, unless found to be  ‘Gillick competent’  do not have the capacity to consent to treatment.  A child will have capacity only if he or she is able to understand the nature, purpose and possible consequences of the treatment proposed.
  • Adults may not have capacity as defined by the Mental Capacity Act 2005,  if they can’t make their own decisions because of some problem with the way their brain or mind is working. This could arise due to illness, disability or exposure to drugs/alcohol. It doesn’t have to be a permanent condition.

An example of a situation where an adult was found not to have capacity to consent to medical treatment, is the ‘forced C-Section’ case of 2013 (see P (A Child) [2013) where the pregnant mother was experiencing serious mental health difficulties and the hospital were concerned about the risks of a natural birth in such circumstances.

 

Who do doctors ask if the patient doesn’t have capacity?

They will need to get:

  • consent from someone who has parental responsibility (PR) for the child; or
  • permission from the court in the case of an adult who lacks capacity or where there is a dispute between adult carers of the child.

 

Parental Responsibility

Parental responsibility is defined at section 3 of the Children Act 1989. The British Medical Association (BMA) ethics guidance from 2008 describes PR in these terms:

  • Parental responsibility is a legal concept that consists of the rights, duties, powers, responsibilities and authority that most parents have in respect of their children. It includes the right to give consent to medical treatment, although as is discussed below, this right is not absolute, as well as, in certain circumstances, the freedom to delegate some decision-making responsibility to others. In addition, competent children can consent to diagnosis and treatment on their own behalf if they understand the implications of what is proposed (see below). Those with parental responsibility also have a statutory right to apply for access to the health records of their child, although children who are mature enough to express views on the issue also need to be asked before parents see their record. Parental responsibility is afforded not only to parents, however, and not all parents have parental responsibility, despite arguably having equal moral rights to make decisions for their children where they have been equally involved in their care.

In theory, doctors only need consent from one person with PR to go ahead with treatment. However this will rarely be a wise course of action if there are strong objections from others who have involvement in the child’s upbringing. The best ethical option in cases of dispute, is  to apply to the court  for an order to either allow or refuse the treatment in question.

An example of such application to court can be found in the case of Neon Roberts, whose parents disagreed about the best way to treat his cancer. Parents may also disagree about specific medical interventions, such as circumcision or blood transfusions on religious grounds.

While the parties are waiting for a court decision regarding treatment, doctors should only provide emergency treatment that is essential to preserve life or prevent serious deterioration of health.

If the doctors consider that by refusing consent to treatment you are not acting in your child’s best interests, they will need to raise this issue with the LA who may need to consider issuing care proceedings.

 

Further information for doctors and patients.

The British Medical Association (BMA) publishes guidelines and can be contacted for advice.

  • BMA members may contact: 0300 123 1233 or British Medical Association Medical Ethics Department BMA House, Tavistock Square, London WC1H 9JP Tel: 020 7383 6286 Email: ethics@bma.org.uk.
  • Non-members may contact: British Medical Association Public Affairs Department BMA House, Tavistock Square, London WC1H 9JP Tel: 020 7387 4499 Email: info.public@bma.org.uk

 

What if I am sharing PR with the LA?

If a care order has already been made then you share PR with the LA. It is clear that it would be unwise for doctors to feel they need only seek permission from the LA, particularly if the proposed treatment is significant. Efforts should always be made to reach agreement, particularly if the proposed medical intervention is not going to involve significant impact on a child’s bodily integrity.

If you don’t feel able to agree to relatively simply medical procedures or assessments, that may raise question marks in the minds of the professionals about how you are discharging your parental responsibility. It is not difficult to see how such situations can spiral out of control (as in the case of Ashya King above) with parents being very suspicious of doctors and vice versa. As ever, good communication is the key; if you are worried about a particular procedure, say so and say why. Ask for further explanation and discussion.

If agreement just isn’t possible, again applying to court may be the only option. The LA cannot simply make any decision they like even when they do share PR under a care order. They can only act when it is ‘necessary’ to safeguard or promote the child’s welfare. See section 33(4) of the Children Act 1989 and considerations of proportionality under Article 8 of the ECHR. The LA also remain under a duty to consult parents before making any serious decisions about a child who is subject to a care order. 

See this case from 2013 where Kingston on Hull City Council were subject to a successful judicial review of their failure to consult parents. The Judge made clear at paragraph 58 his views about the duty to consult:

  • I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard. Paragraph 1.5 provides (inter alia): “Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.” … “If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”

Principles of law when there is disagreement about the treatment a child needs.

If it is not possible to reach agreement, the court will have to make a decision about what kind of treatment/intervention is in the best interests of the child. Baker J set out the relevant principles to be applied in such cases (see para 29 of his judgment in September 2014):

  • The child’s welfare is the most important issue before the court ;
  • The court must also have regard to the child’s rights under the ECHR; most pertinently the right to life under Article 2 and the right to respect for family and private life under Article 8;
  • Responsibility for making decisions about children rests with the parents and the state should only interfere if the child is suffering or at risk of suffering significant harm.

For consideration of how the court should approach a case when doctors wish to stop giving life sustaining treatment to a seriously ill child, see the case of Kirklees Council v RE  [2104].

Care and Supervision Orders

Care and Supervision orders were created by Part IV of the Children Act 1989.

See Chapter 3 of the Guidance from the Department of Eduction.

On the application of the LA or the NSPCC the court can consider making either order if the provisions of section 31 are made out. This requires the judge to be satisfied that a child has suffered or is at risk of significant harm.

The significant harm can occur because of bad parenting (which is likely to be seen as the parents’ ‘fault’) or because the child is beyond parental control – this may be less likely to be seen as the ‘fault’ of the parents. But regardless of questions of who or what is to ‘blame’ – there must be a link between the parenting/lack of control and the significant harm.

In this post, we examine the legal consequences that flow from the making of either a care or a supervision order.

If you are worried that your child is going to be taken away at an ‘interim hearing’ i.e. before the final care order is made, read more about this here.

 

Care and Supervision Orders – some general points

  • No care or supervision order can be made once child is 17 years old (or sixteen if married!)
  • If the LA want a care order the court can decide to make a supervision order or no order at all. This is due to the principle of ‘least intervention’; the court must be careful that the decisions it makes are proportionate to the harm in question. Proportionality is a key concept in Family Law – see Article 8 of the ECHR. If the child could be kept safe by a less serious order, such as a supervision order or child arrangements order, then that is the order that should be made. See further our post about Article 8 and proportionality.
  • A care order gives the LA parental responsibility for a child; a supervision order does not. See discussion below.
  • If a care order is made, if the child is subject to any other orders – such as any order under section 8 of the Children Act 1989, a supervision order, education supervision order or school attendance order – those orders will be discharged. Also if the child was a ward of court, the care order will bring wardship to an end.
  • If the child is subject to a care order and the court makes a special guardianship order or a child arrangements order under section 8 of the Children Act 1989, dealing with the living arrangements of a child, that will bring the care order to an end. If the court makes a placement order, the care order is suspended not discharged and will revive if the placement order is revoked.

Care Plans

Under section 31A of the Children Act 1989 the court cannot make a care order unless the LA have provided a care plan for the child. Section 15 of the Children and Families Act 2014 has amended the law with regard to care plans to say that the court need only  examine that part of the plan which relates to permanency for the child – i.e. what the LA thinks should happen to the child in the future and where he or she should live.

 

Consequences of a care order

Impact on parental responsibility

What is parental responsibility?

Parental responsibility (‘PR’) is defined under section 3 of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority, which by law a parent has in relation to the child and his/her property.”

In a nutshell this means that people with PR have a right to know and make decisions about serious issues in the child’s life, such as where they live or go to school or what medical treatment they need.

Mothers automatically have PR for their children; fathers will have it automatically if they are married to the mother or – from 2003 – if their name appears on the birth certificate. If the parents were not married, the father is not on the birth certificate and the parents cannot agree about PR, the father will need to apply to the court for an order awarding him PR.

The key distinction between care and supervision orders is found under section 33(3) of the Children Act. Only a care order can gives the LA parental responsibility and the power to decide how any one else can exercise their parental responsibility. It is often said that a care order allows the LA to ‘share’ parental responsibility but the more realistic description is that the LA is now in the driving seat when it comes to making decisions about the child. 

 

The LA can control parents’ exercise of their parental responsibility when ‘necessary’.

However, under section 33(4) the LA can only use their powers to control other people’s parental responsibility if to do so is necessary to safeguard or promote the child’s welfare. Together with the considerations of Article 8 of the ECHR and the need to act proportionally, the LA will need to think seriously about whether or not what it proposes is ‘necessary’.

For example, see our post on what happened when the LA wanted to remove a child who was placed at home under a care order. The court decided that this had not been ‘necessary’ and that the first judge had the power to stop them by way of an injunction under the Human Rights Act 1998.

Further, under section 33(6) the LA is NOT entitled to change the child’s religious persuasion and NO ONE is allowed to call the child by a different surname or take him out of the country for more than a month unless everyone with parental responsibility agrees or the court orders.

 

Duty to consult

It is important to note that, even though under a care order the LA is in the ‘driving seat’, they cannot ignore the other passengers – the LA MUST consult with and inform other PR holders about important decisions they make for the child and they have rightly been subject to serious criticism when they have failed to do this.

See this case from 2013 where Kingston on Hull City Council were subject to a successful judicial review of their failure to consult parents.

The Judge made clear at paragraph 58 his views about the duty to consult:

I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard.

Paragraph 1.5 provides (inter alia):
“Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.” …

“If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”
Whilst it is not spelled-out quite as starkly as perhaps it should, there is contained therein a plain message that a local authority must consult and, in my judgment, that is even more crucial during the interim phase of proceedings when final decisions as to the threshold criteria and outcome have not been made by a court.

The issue about how the LA needs to consult will depend on the facts of each case, but should usually include the parents and the guardian, if one is appointed and any other family member who has a close link to the children, such as a grandparent who may be caring for the child or otherwise closely concerned.

The LA will then have to decide how much weight to attach to the input of those it consults and again, this will depend on the facts of each case.  But the Judge was clear:

The “others” who need to be consulted may have a valuable contribution that might alter the proposal of the local authority. It does not mean the parents and other parties must concur with the proposal before it can be implemented. There can be no veto or casting vote. Equally, the parents and other parties are not mere vassals to whom information is given and nothing more.

I don’t agree with what the LA wants to do

If, after consultation, you do not agree with the LA’s proposed plan of action, you may need to consider applying for an injunction to prevent them from acting under the Human Rights Act. We discuss this remedy here.

 

Impact of care order on contact with children

There is a helpful article from Family Law which discusses applications for contact with a child in care. See also the Care Planning, Placement and Case Review Regulations 2010.

Section 34 states that the LA ‘shall’ allow the child ‘reasonable contact’ with his parents or guardian, a step-parent who has parental responsibility or anyone who had a residence order immediately before the care order was made. Any other person who wants contact will have to apply to the court for leave to make an application and the court may make ‘such an order as it considers appropriate’.

Contact with babies in care proceedings

It used to be thought that when babies were taken into care, that parents ought to have as much contact as possible, and 5 times a week would represent a minimum. However, more recently,  the courts have become aware of research which showed that frequent contact for babies in care was often harmful to  them as it could mean that they were subject to a lot of travelling with unfamiliar people and it had a negative impact on their ability to settle in foster placements. So it is likely that contact with a baby will be set at between 2-3 times a week and probably less for older children as they are likely to have a number of commitments such as school attendance which may impact upon frequent contact.

If you want to know more about the issue of contact with babies in care, here is a transcript of a debate on 8th December 2010, organised by the Family Justice Council ,which includes contributions from the President of the Family Division. There is a useful article here from Jenny Kenrick, a child psychotherapist, which looks  further at the practical issues around contact with babies in care proceedings.

The LA want to stop contact

The LA cannot refuse contact unless for an urgent reason and then only for 7 days. If the LA wants to stop contact and you don’t agree,  it will have to ask the court to order this under section 34(4).

If the LA do want to stop your contact, then under Regulation 8 of the Care Planning, Placement and Case Review Regulations of 2010, they must give written notice of:

(a) the responsible authority’s decision,
(b) the date of the decision,
(c) the reasons for the decision,
(d) the duration of the decision (if applicable), and
(e )remedies available in case of dissatisfaction.

 

Supervision Orders

You will find supervision orders at section 35 of the Children Act 1989.

A supervision order does NOT give the LA parental responsibility for your child but allows them to appoint a ‘supervisor’ who will ‘advise, assist and befriend the supervised child’ and take whatever steps are necessary to make the supervision order work. 

Supervision orders are normally made for six months or 12 months at time. They can be a good way of dealing with concerns which are worrying but not so serious that a care order is required. It is a way of keeping an eye on a situation and monitoring how well things are going.

The court can make a supervision order even if the LA is asking for a care order, if the court thinks a supervision order is the best order to make.