Who’s the boss: parental responsibility and the courts

Two court cases involving parents have been in the headlines recently. One involved a father wanting to take his child out of school during term time, the other, a desperate battle over whether a baby should be allowed to live.

Both cases raise questions over who has the ultimate say over a child’s welfare; the parents or the court? How far can the government, through legislation, and the court’s interpretation of that legislation, intrude on a right that society takes for granted – that it is for the parents to decide what is best for their child and no one else?

On 6th April 2017, the Supreme Court ruled unanimously allowed an appeal by education chiefs, ruling that Jon Platt, who had taken his daughter out of school during term-time to go to Florida on holiday, had acted unlawfully. Under s444 of Education Act 1996, parents are guilty of an offence if their child does not attend school regularly. Mr Platt had refused to pay the £120 fine he received for taking his daughter on holiday during term time without the school’s permission.

Speaking after the decision was handed down, Mr Platt said, ‘Every unauthorised absence, including being a minute late to school, is now a criminal offence.’

He added, ‘This is no longer about term-time holiday. It is about the state taking the rights of parents away to make decisions about their own children. You are not the final arbiter of what’s right for your child.’

The case of Charlie Gard also involved the right of parents to make ultimate choices for their child, but in heart-wrenching circumstances.

On 11th April 2017, the High Court ruled that doctors at Great Ormond Street Hospital could remove Charlie’s life-support without parental consent. Charlie, who suffers from a rare genetic condition, cannot breathe without a ventilator and is unable to move. The baby’s parents had wanted to take him to America for further, experimental treatment but the Mr Justice Frances ruled against them, “with the heaviest of hearts”, stating, “Charlie’s parents have sadly but bravely acknowledged and accepted that the quality of life that Charlie has at present is not worth sustaining, for he can only breathe through a ventilator, and although they believe that he has a sleep/wake cycle and can recognise them and react to them when they are close, they realise that he cannot go on as he is lying in bed, unable to move, fed through a tube, breathing through a machine.”

He went on to say, “Understandably, Charlie’s parents had grasped that possibility, they have done all they could possibly have done, they have very publicly raised funds. What parents would not do the same? But I have to say, having heard the evidence, that this case has never been about affordability, but about whether there is anything to be done for Charlie.”

Both these decisions illustrate that the court can override parental decisions in some circumstances.

Who has parental responsibility for a child?

Parental responsibility is defined in the Children Act 1989. A person who has parental responsibility for a child can make decisions on where the child lives, their education, religious upbringing and discipline. They can also consent to medical treatment, adoption and whether the child can move to another country.

Parental responsibility applies to:

the mother – automatically in all cases
a father – if he is or has been married to the mother
in relation to a child conceived after 6th April 2009, a child’s mother and the mother’s civil partner who is a parent by virtue of artificial insemination.
anyone else (including Local Authorities) under court order or a Parental Responsibility agreement

Unmarried fathers can acquire parental responsibility by being registered on the birth certificate or making an application for parental responsibility. The latter will require the consent of the mother.

When can the court override parental responsibility?

The courts tread a very fine line when it comes to overriding the wishes of a child’s parents and will only do so in exceptional circumstances. As with all legal matters relating to children, the rights of the child are the paramount consideration.

When it comes to medical treatment, except in an emergency situation, parental consent is required in order to perform medical procedures on children, including adolescents. However, the court can and will overrule parents if their decision endangers their child’s welfare. This has been shown many times in cases involving Jehovah Witness’s refusing consent for a blood transfusion for their child. UK courts have ruled many times that a blood transfusion must be given, despite parents refusing to provide consent because of their religious beliefs.

In summary

Courts throughout the western world recognise parental rights, but these rights are not absolute. Parental rights to raise children are underpinned by a duty to ensure their health, safety, and wellbeing. Parents cannot make decisions that may permanently harm or otherwise impair their child’s healthy development.

These types of cases are never easy and always turn on their facts. In cases such as little Charlie Gard, there are no winners; doctors, judges and most of all, parents, are left devastated. But the law cannot be emotionally driven. Decisions are made by following set principles that balance out the needs of society as a whole. And when it comes to cases involving children, whether it be their education or health, their rights and wellbeing will always be considered paramount.

In many cases we see, the ‘welfare of the child is paramount’ stipulation causes problems. This is due to the local authority and/or the court being unable to come to an agreement with the parents on what the best interests of the child in question are. This is where instructing a family solicitor who is experienced in children’s law can help; we can work on the behalf of parents to ensure their views are heard and their position is robustly represented..

Rosie Bracher are specialist family law solicitors based in Barnstaple. If you require caring, confidential information about any issues raised in this blog, please phone us on 01271 314 904 to make an appointment.

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