Parental Responsibility for Child from Birth: Analytical Essay

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The mother naturally assumes parental responsibility for her child from birth. A father typically has parental responsibility whether he or she is either married to the mother of the child or named on the birth certificate. They will have parental responsibility if they separate later. This relates to the case of Andrew as his father still has parental control over him.

Child Autonomy involves informing children that they have control over themselves and the decisions they make, and that can range from the activities they take part in and how they play and communicate with their peers, and this is because autonomy plays a role in what a child does in the classroom. When the child grows older, they will have more freedom and autonomy, but guidance is still essential. In the case of Gillick v West Norfolk and the Wisbech Local Health Authority in 1986, it tells us how the court recognised the right of doctors to offer contraceptives to teenagers under 16 years of age and under certain circumstances, and therefore enables them to have a degree of autonomy. Lord Scarman speech in the Gillick v West Norfolk and Wisbech Area Health Authority 1986 said that the parents’ authority “yields to the child’s right to make his own decisions where he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision”. In this case, Andrew and Fred are old enough to make their own decisions about their welfare and their living arrangements. In this case, Andrew believes that he is better off living with Daisy due to the history of violence in his family. Fred has the capability of making a decision regardless of the fact that he is unsure now.

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The Children’s Act 1989 sets out three standards that the court will apply to the protection and development of children. The first is Paramountcy Principle S(191) CA 1989, which states that the protection of the child shall be the primary concern of the court. Section 1 states that ‘if a court rules on any issue concerning either the child’s upbringing or the control of the child’s property or the payment of any benefit arising from it, then the child’s welfare shall be the primary consideration of the Court.’ Ward LJ stated in the case of REA 2001 “parental rights and powers exist for the performance of their duties and responsibilities to the child and must be exercised in the best interest of the child”. In this case because Fred and Andrew witnessed the abuse between Aria and Daisy it could affect them in the future as they could imitate the behaviour that they have seen, which could have an impact on relationships in the future.

Section 1(1) of the Children’s Act 1989 implies that the paramount means that the decision made overrides all other considerations. Section 1(5) sets out the second principle, which is the principle of non-intervention, which indicates that “the court should only make an order if it is satisfied that to do so would be better for the child compared to making no order at all”. When there is a conflict between the parents or the parent wants to withdraw the child from the jurisdiction for a period of time, an order may be given. This applies to parental responsibility, which relates to the legal duties, rights, powers and responsibilities of the parent with respect to the child and its properties. If a person has parental responsibility for a child then they have the right to make decisions about their upbringing or care. Section 1(3) is the third principle that states that the court “will apply the avoidance of delay principle”. The court should regard that the lengthy proceedings regarding the question of the child’s upbringing may affect the child’s welfare. Therefore, a timetable and a future court date must be set by the court until the case is resolved. In this case, Aria and Daisy have parental responsibility for Fred and Andrew as they were civil partners at the time of the donor insemination.

When all the laws are applied by the court, the conditions should be extended to the case. Six conditions apply to the court. With regard to the first element, the court must consider the child’s views on his or her maturity and age. When the court determines that the child is mature and big enough to consider their condition, their opinions should be taken into account. The court must consider how the changed circumstances could impact the kid. Occasionally, the court is very reluctant to push a child out of the family atmosphere. In ReS (2002) the court refused to make an order for contact relating to two children aged 14 and 16, who stated that they did not wish to see their father. In this case, Fred and Andrew are both under the age of 14.The court will always consider a child’s custodial preference when the child is 14 years old or older. If the child is under the age of 14 but can make a reasoned preference for one parent, the judge will consider the child’s opinion as well. Also, the court proceedings could have an effect on their education as they would need to be absent from school to attend court.

This aspect emerged from the case of RES and others (2008) which contains four requirements that the court must recognise as to the placement of the child, regardless of whether the child has experienced any harm, including physical and mental violence. These include drug and alcohol misuse, child neglect or harassment among other members of the family. The child’s gender, age, heritage or any features that the court considers relevant are taken into account by a fifth factor. This allows courts to focus on race, religion and care issues that are mentioned in the case of M vs H(education welfare) 2008. The last aspect is the capacity of the parent, in which the court must decide which parent is suitable to provide and take care of the child. In this case, Andrew and Fred have seen the violence between Aria and Daisy, which could have formed resentment towards Aria from them which could influence their decision as to who they want to live with.

Section 8 of the Children’s Act (1989) includes four clauses that the court will remember when determining who the child should be living with. The first order is the order of the child (stay order). This determines where the child will live. The second clause is the provision on the organisation of the child (communication order) where the court decides if the child should contact the other parent or both parents if it has been determined that the child does not stay with either of them. The third clause refers to provisions that prohibit a person from taking further action with regards to a child without the permission of the court. The fourth aspect is the particular order of issue, which helps the court to examine those issues that the court will find and implement. For example, if parents are fighting over a child’s religion, the court could help the child make a decision. In this case, Andrew has made a decision which he is satisfied with, although the Reverend is seeking a court order which could allow him to remain in contact with Andrew.

Under s10(4) of the Children’s Act 1989, there are 3 types of people that can have an automatic right to apply for any s8 order, they are

  • The child’s legal parents
  • The child’s guardian
  • A step parent that has parental responsibility

Under s10(5) of the Children’s Act 1989, there are more groups of people that have an automatic right to apply for contact or residence orders, they are:

  • Either party to a marriage or civil partnership, whether it is existing or not, in respect of a child of the family
  • Anyone with whom the child has lived with for 3 out of the past 5 years
  • Anyone who has obtained the consent of the parents with parental responsibility or from everybody in whom a residence order has been made, or of the local authority if the child is in care
  • A relative of the child with whom the child has been living with for the past year can apply for residence order only

In this case, both Daisy and Aria have full parental responsibility. This is because they are both labelled as Andrew and Fred’s legal parents. Even though in Fred’s case a donated sperm was used and in Andrew’s case Reverend George’s sperm was used they don’t have any parental responsibility. Although they can apply for it. In both cases, if the father’s name is not on the birth certificate they have no parental responsibility. Even if it wasn’t Daisy’s egg that was used to create the embryo, she still had given birth to Fred which means she automatically has parental responsibility, this is the same with Andrew and Aria.

Although Aria and Daisy parted ways, both of them requested for consent to live with both Fred and Andrew, it is vital to remember that towards the end of the relationship Aria was violent towards Daisy. The circumstance will work for Daisy, as the children have witnessed domestic violence, and the court does not allow the children to stay with someone who is violent, even though the abuse is not targeted towards the children. The court will determine who would provide the better care for the children. Even though Aria and Daisy may give adequate safety, the court would most likely prefer Daisy to obtain a residence order with whom the children will ultimately live.

Furthermore, the court may allow Aria to obtain a contact order instead of a residence order, so that she may still remain in contact with Andrew and Fred. This means that all visits will be arranged amongst the children and Aria. For this situation, the autonomy of the child is applicable, as the children’s preferences should be taken into account when a schedule is set, so that the children can see Aria if they wish to. Andrew is at an appropriate age where he recognizes his position and is aware of what is going on, and considering that Aria has parental control over him, he can decide whether to see her or not. Nevertheless, Fred is still unsure as to who he wants to live with, even if he lives with Daisy he can still remain in contact with Aria if she has been granted a contact order. Also, if Reverend George wants contact with Andrew, he too would have to apply for a contact order and if it is granted he can legally contact Andrew, but it is up to Andrew whether he would want contact with him.

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