Parental responsibility is a concept beloved by lawyers and the Courts but what does it actually mean for parents, children and educators?
It is usual for both parents to each share the legal rights and responsibilities for their children. This is embodied in the concept of parental responsibility, defined in the Children Act 1989 (CA1989), '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'. As of 22 October 2014 the court must now consider as a starting point that both parents should be involved in their children's lives, unless this is contrary to that child's welfare.
If parents are married then both parents automatically share parental responsibility. Similarly, if the father is named on the child's birth certificate he will have parental responsibility; otherwise it will be acquired by way of application or formal agreement through the Courts. Under the CA1989 it was also automatically acquired by anyone being granted a residence order. Grandparents and step parents, discussed below, do not have parental responsibility. Issues around rights and duties are even more pronounced as young people move into adulthood. Once a child is 16, the CA1989 states that no orders will be made unless the circumstances are exceptional, e.g, in cases of particular special need or educational difficulty. By contrast court orders usually last until a child reaches the age of 18. Therefore for most 16 year olds, there is little or no court interference. Realistically, at that age they can 'vote with their feet' and their wishes and feelings will be fairly determinative.
Parents with parental responsibility are entitled to school reports regarding the child's educational is progress. Although this may require separate parents' evenings, both are entitled to information and keep in mind that without a court order, one parent is not at liberty to block the other parent's access. From an estranged parent's perspective it is essential to maintain contact with teachers.
What should a school do if a 16 year old objects to them disclosing reports and exam results to an estranged parent? Clearly once the child reaches 18, data protection issues apply, but this is an area for debate in the sixth form context. I would not wish to be the Head that went against the strongly held wishes of any 16 or 17 year old.
Another point arising regarding the release of information is the contractual obligations between a fee-paying school and the paying estranged parent. A parent may need to take the matter back to Court albeit with the caveat above as to orders and the age limitation. Should such an application be made, my guess is that any judge would be influenced by the teenager's wishes and feelings and their autonomy.
It's not just absent parents which can present a challenge to schools. Collection and pick up times are a contentious issue particularly at primary level. If there are no court orders, timings are an art rather than a science. If the parents are separated and share parental responsibility then they are both unhelpfully entitled to care for the child but this is not a matter for 3.30 on a Friday before vacation. In all cases, the best interests of the child should be observed. Any school is at liberty to contact their Local Authority Legal Department for advice. In the UK, grandparents' rights are a tricky and emotionally charged area. They are not entitled to any information, school reports, or to interfere in the day to day care of their grandchildren. Without the consent of the parent, grandparents are to be treated like any other member of the public. They have no automatic presumption of contact with their grandchildren, and may have to go to court to obtain a child arrangements order. If they are caring for grandchildren permanently, it is essential that grandparents obtain legal orders so they can legally participate in their grandchildren's lives. A harsh reality which should be reconsidered by a forward thinking Government perhaps?
Similarly step parents or cohabiting partners have no more rights than any other person. A parent can delegate their parental responsibility, although I would suggest that any natural parent with parental responsibility would have more influence at the school gate than that of a step parent or other person with delegated responsibility, sent to do the school pick up. It is easier for the school once court orders are involved. The school should be provided with orders setting out the arrangements for the child and everyone has to comply with them. In the event of an emergency and breakdown in arrangements, then it is incumbent upon the parents to take the matter back to court. Unless there is a serious welfare situation, the police have little power other than to advise parents to reach an agreement – and ask them not to breach the peace in the school playground!
The recent legislation makes it clear that in the event of a break up both parents have a place in a child's life, and the courts are keen to balance the parents' legal rights and responsibilities for their children. They have shown that they do not like to usurp parental judgment encouraging parents to reach resolution, particularly through mediation. The court's paramount consideration is the welfare of the child, therefore where appropriate, it is imperative that estranged parents understand that they do have a right to information and to continued involvement in their children's lives.