Divorce and Family Law

What is parental responsibility (PR)?

PR is “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” (CA 1989, s3(1)).

PR allows the parent to take all fundamental day-to-day decisions in their child’s life from which school the child attends, the medical treatment they receive and the religion they follow during their minority, to the outings they take and the food that they eat.

The view that the court takes in relation to PR is different for each individual child, taking account of their age and maturity.

How do you obtain PR?

Married parents have joint PR. If they are not married, only the mother has PR. The father can obtain PR in one of the following ways:

Conflict

When there conflict between parents, such as when the parents are splitting up or divorcing, as to the upbringing of their child, they may have to be resort to the courts if the matter cannot be resolved by agreement. This is particularly a problem where one parent does not live with the child. The absent parent may have irregular and infrequent contact, even indirect contact, yet wants to be involved in making decisions about the child’s upbringing on a particular issue whilst feeling distanced from the upbringing of the child.

On the other hand, the parent living with the child may feel the other parent ought not to have any say in the matter as they do not have direct involvement in the child’s life on a daily basis.

Disputes often occurs in such circumstances  where both parents have PR. Resort will usually be made to the Courts.

There are some issues where the Courts consider an Application in the face of conflict is essential. Case law on this area provides a useful indicator of the courts' attitude where there has been such conflict. The cases provide a flavour of those issues where the courts will become involved because the decision is of such importance to the upbringing of the child that they should not be taken by one parent alone.

The following key judgements indicate the Courts views on disputes between a parent with care and the absent parent. At all times the Court’s primary concern is the welfare of the child.

Religion - Re J (Religious upbringing and Circumcision)
Father wanted child to be brought up as a Muslim and to be circumcised. Applied for specific issue orders for the court to determine the upbringing of the child in relation to these matters.

Court decided not to make an order that the child must be brought up as a Muslim. The judge qualified this decision by stating that the father could deal with the religion of his son through contact.

On the second issue, the court made an order that the child should not be circumcised on the basis that the religious faith the child practices should be considered within the context of the family environment in which he was brought up.

Immunisation – Re B (A Child); Re C (Welfare of Child: Immunisation)
Fathers wanted their children vaccinated with the MMR jab, while the Mothers did not want their child to be given the vaccination.

It was decided the mothers’ bond with the children did not offset the potential benefit to the children of the immunisation.

Change of Surname – Dawson v Wearmouth
Re W (A Child); Re A (A Child); Re B (Children)
These cases indicate that when issues concerning the change of a child’s surname arise the overriding principle should be the welfare of the child. This takes account of the family environment the child will be within most of their life.

Obtaining the consent of the father without PR is good practice. It may be better to consider the use of a middle name rather than changing the surname of the child.

To discuss your own situation or to make an appointment, contact one of the lawyers in the Matrimonial department, Lisa Bolgar Smith or Eleanor Hoare on 020 7242 7000 or use the Contact Request Form.

© Ambrose Appelbe 2004-2008
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