 Hello there, I'm Rob George, I'm Associate Professor of Family Law at University College London. I'm going to talk in this lecture about the idea of parental responsibility which is found in the Children Act, trying to unpick some of the challenges that I think this concept has created, and in particular trying to make some sense of the definition that we find in the Children Act, and unraveling some of the nuances of the scope and application of the idea of parental responsibility. And I'm going to say, and the answer, this is a bit of a work in progress still, so if you have thoughts and ideas and things have overlooked or got wrong, it should be great to be in touch and let me know. So let's kick off by just reminding ourselves about the idea of parental responsibility. This is defined right up front in section 31 of the Children Act, 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. This is pretty much as far as the Children Act goes in telling us what parental responsibility means. And Lady Justice Black in a 2010 case called TNT described the definition in section 31 as being a very clear exposition of the broad concept. But with the greatest of respect to Lady Justice Black, I don't think it says anything really at all. What are the rights that the law gives to a parent? What are the duties that a parent has as a matter of law? None of this is actually clear at all. And, as we're going to say in just a moment, in some cases that definition is very clearly wrong. So let's start just by illustrating the ways of some of the reasons in which it's just actually wrong. So the first and most clear example of this, I think, is child support. The law imposes an obligation to provide financial support for a child, and this is in fact one of the most fundamental duties that a parent has. But if you have even the most cursory look at the Child Support Act of 1991 at subsequent legislation, what you'll find is that the primary financial duties that the law imposes are imposed on the person who is a legal parent of the child. That, as you'll know from your general studies of the law, is connected but not the same as the question of who has parental responsibility. And in particular, for people who aren't the birth mother of the child, the rules about who has parental responsibility are not the same as who is a legal parent. Meanwhile, the Child Support Act does not, as a general proposition, impose any liability financially towards a child on a person who is not a parent, but who has parental responsibility. So given that, going back to it, the Children Act confidently asserts that PR means all the duties which by law a parent of a child has in relation to the child, that's not true because the Child Support Obligation, one of the most fundamental obligations and duties that a parent has to the child, isn't part of parental responsibility at all, it's part of legal parenthood. So far from being this very clear exposition of a broad concept, and say in fact that Section 3-1 gives an unclear and in some ways actively misleading explanation of what is encompassed in the legal status of being a holder of parental responsibility. So there's a first problem with PR. It's also unclear what the outer limits of parental responsibility are in any particular context. This is what the Court has sometimes referred to as being the ambit or zone of a parent's parental responsibility. That's a phrase that was initially used by Mr Justice Hayden, picked up by Lady Black in her judgement in Reading in 2019. And delineating the edges of the zone of parental responsibility is really very difficult and there are a number of particular challenges that make it hard to get a precise answer to what is the zone of parental responsibility. So one of those challenges to start with is that there are great many rules about what parents can do that are expressed by reference to effectively normal societal standards. So there's no fixed definition. It's based on what other people do. So one example of that is about the removal of children from the care of their parents when the children are suffering or at risk of suffering a significant harm. This is the threshold for care proceedings and the question is not only is the child suffering the risk of suffering a significant harm but under Lim B of the Section 31 threshold. The Court has to be unsatisfied that the cause of that harm or risk of harm is that the care being given to the child or likely to be given if the order were not made is not what it would be reasonable to expect a parent to give. So here you've got a provision which specifically tells the Court we have to ask about the reasonable parenting. The Court has endeavoured to interpret the provision to a pretty wide range of parenting practices but it's still clearly a limitation of what parents can do in the exercise of their parental responsibility and it's not far from the UN Supreme Court's definition of obscenity. We know it when we see it so we know that parents are being unreasonable but how do we know that? And if you had to explain to somebody where the limits were could you do that? It's almost a vague standard but crucial to our understanding of what parental responsibility means and to the acceptable standards of parenting in care proceedings. A second challenge to understanding the limits of parental responsibility comes from the idea of the child's own developing competence. So this is usually known in relation to the 1986 House of Lords decision of Gillick and West Norfolk and Weisbeck Health Authority and in particular the judgment of Lord Scotland will see on the screen there. This is in short the idea that a child with a sufficient maturity and understanding of whatever the particular issue is that's in stoke for being decided should be able to make that decision for him or herself. But as of course you will know if you have already studied this topic the scope of the idea of Gillick competence and what it means is highly contested. The wording of the Gillick judgments themselves particularly as I say that of Lord Scotland seems to suggest a very significant limitation on parents as children get mature and understand the issues that are thoughts of their lives. But the subsequent interpretation of the Gillick decision leads to some fairly difficult to answer questions about what that actually means for parental responsibility. So it's not my focus to think about them but two subsequent decisions of the Gillick both well known in recent cases in particular raise questions about what the scope of parental responsibility really is. So the first which seems to expand what Gillick had left behind in our understanding of parental responsibility in Rihar Lord Donaldson again pictured here says that the court will allow a parent still to override their child's objections to medical treatment. So as long as the parent gives consent even if the child who is Gillick competent refuses to consent the doctor is permitted to proceed to provide treatment and will not be at any risk of any adverse legal proceedings against him or her. The second having expanded in some ways the idea of parental responsibility back into the area which appeared to have been taken away by Gillick the REW decision then in some ways goes the other way because the Court of Appeal again Lord Donaldson giving the main judgment seems then to say that even if the parents and the child agree and indeed in this case the child was older than 16 and so it appeared even by statute to have the right to make the decision about medical treatment the court Lord Donaldson says can still override both of them so even if the parents and the child is Gillick competent or over 16 object to the treatment and refuse to give consent the court can intervene and override both of them So where does that leave us in relation to parental responsibility? Well as I say my focus today isn't really on the idea of giving this law in the cases but who is interested in that. I would commend Professor Stephen Gillmore's writing on this subject in the 2009 chapter of limits of parental responsibility in the book that he co-edited with Rebecca Provert of Jonathan Fehring Stephen really explores that idea in some depth about what this means and how far Gillick goes and some of his later writing has also looked at several issues but it's not my focus, I want to focus on a couple of other points to try to unpick a bit more about some of the other challenges that we see in relation to parental responsibility and the next stage of doing that is to turn away from parents and think about local authorities A local authority can gain parental responsibility for a child in two connected ways one is where the child is the subject of a full care order under section 31 the other is where the child is the subject of an interim care order under section 38 the thresholds and tests for those two orders are slightly different although they're both connected to a child who is suffering or is at risk of suffering a significant harm but the outcome from the local authority's perspective isn't actually the same the local authority in particular gains parental responsibility and the crucial thing to note here is that subjects of what I'm about to go on to say parental responsibility is the same it's defined in the same way, there is only one definition and it's that definition in section 31 that we looked at at the beginning all the rights, duties, powers, responsibilities and authority that a parent has as a matter of law in relation to the child so when a local authority gets parental responsibility under one of these sections it's the same parental responsibility as the parents have subject to what I'm about to go on to say so there's two differences when a local authority has parental responsibility the first is that there are some specific limitations on what the local authority is allowed to do with that parental responsibility so in section 33 and subsection 6 there are specific limitations on the local authority itself so they must allow insurance to change the child's religious upbringing they're not allowed to make or refuse to make an adoption order and they're not allowed to appoint a guardian which is to say somebody to take over the care of the child in legal terms if both of the parents were to die so those things are specific limitations which a parent in the exercise of their parental responsibility would be free to do but the local authority is not in subsection 7 there are also restrictions on any exercising parental responsibility in a particular way taking actions that relate to parental responsibility where care order is enforced but these apply to everybody, not just the local authority and if you have a look back for comparison under section 13 of the children there are very similar equivalent provisions that apply as between parents when a residence order used to be called a child's parental responsibility where a child is to live with a person who is in force so actually these restrictions under subsection 7 although applicable here because of the care order are really just a reflection of restrictions that apply in almost all cases where a child arrangements order is enforced as well so we've got some specific limitations on what the PR of a local authority can be used for but on the other hand the local authority's parental responsibility is in fact in some ways greater than parents' parental responsibility because if you look back to subsection 3 of section 33 this is the provision that gives the local authority PR in the first place so subsection 8 gives the local authority parental responsibility subsection 8 gives the local authority then power to determine the extent to which the parent may meet his or her own parental responsibility so the parent retains parental responsibility when the care order doesn't stop the parental PR it gives it to the local authority as well but ultimately at the end of the process if there is a dispute between the local authority and the parents about how parental responsibility should be exercised subsection 3 paragraph B basically says the local authority makes the decisions so the PR that the local authority gets although limited in those ways that we saw in subsection 6 in general terms is actually more potent than power of the parent because the local authority's PR can trump the parent's decisions and that built in hierarchy of parental responsibility explains the existence of section 9 subsection 1 in the children act where when the local authority hands at the child in its care the court is not permitted to make section 8 orders private law orders and in particular not to make private orders for specific issue orders or prohibited steps orders so those two orders which ordinarily would be the way the court resolved a dispute about an issue of parental responsibility the court is forbidden to make those orders where a care order is enforced and the straightforward explanation for why is that parliament has already decided if there's a dispute between the parents and the local authority when a child is in care the local authority gets to make that decision so the court isn't allowed to be brought into play by parents to try to challenge the local authority's decision and the local authority doesn't need a section in order a specific issue or prohibited steps order because they already have this trumping parental responsibility or so it seems but in fact it gets more complicated because the court have explained that article 8 of the European Convention on Human Rights has to be taken into account when thinking about all of these issues and so that provision which provides of course for the right to respect the private and family life home and correspondence and that the statement into fear with that right to respect for those things without proportionate justification that has application obviously to all the family law but the court has said it has application even when the local authority already has parental responsibility careful so let's take a couple of examples the first is a child who is in local authority care for whatever reason but not because of an issue about failure to provide medical treatment but where the child subsequently develops a need for a particular medical treatment the parents for whatever reason are opposed to the medical treatment and assume that the child is either not give a competent or that the child also is a part of the medical treatment the starting point thinking about how that should be resolved to child care who needs medical operation would be to say well, the local authority has parental responsibility medical treatment is definitely within the zone of parental responsibility and we know that because clearly parents can consent to medical treatment do so every day for minor and major medical procedures so since the local authority has this trumping parental responsibility the answer would seem to be the local authority can give the relevant consent to the medical treatment and the parents don't really get to stop them but the courts have kind of serious doubts on that so in a judgment in the family court but given by the president of the family division Sir James Mumby and therefore obviously carrying a degree of senior authority the president said in what I think it's also worth to say in the comments that a local authority would be ill advised to rely on its parental responsibility under section 33 of the Children Act to authorise medical treatment when parents are opposed to it and the reason he said this is because of the parents and the child's political aid rights and so he says in Stintland rather than simply proceeding the local authority should seek a court order to avoid risk of any breach of Article 8 so that's one example and another where a similar issue arises is where a local authority who gets a care order is not required to remove a challenge from the family home it simply is empowered to do so and must then make a decision whether to do so or not and it will be part of the local authority's care plan that is put before the court whether they intend to do that or not the question is supposing the original plan was to leave the children in the family home with the parents or one of the parents the care order is made on a basis but subsequent actions or inactions by the parents mean the local authority think it is actually necessary to remove the child to foster care or to live elsewhere can the local authority use their parental responsibility to treat the parents' decision about where the child should live the answer on the face of it again would seem to be yes but the court, this time a decision of Mr Justice Baker in the case called Rede has said again because of Article 8 writes to respect to the private and family life of the parents and the children that the local authority take that action without giving proper warning to the family and giving them time to make an application to oppose that and if the local authority simply removes them except in an absolute emergency that is going to be a violation of Article 8 writes so the difficulty here seems to me is going to be for the local authority having parental responsibility to know when it can use that parental responsibility and when it can't and so coming back to the idea of parental responsibility as this very clear exposition of the broad concept actually despite what Lady Justice Black says in TNT I think it is very clear and straightforward at all and we can further see turning to some more recent decisions in a moment by thinking about the idea of whether there are a category of decisions within the zone of parental responsibility which are so significant in some way that parents are required to consult about them now the courts have clearly said since the early 2000s that there is such a category even when the children that any of them may act alone and without the other people in meeting the parental responsibility the courts have been clear for a long time that there was this duty to consult about significant issues and John Ricola is pictured there and wrote about this back in 1988 and if you are interested that needs to go a step and it is still worth reading but what are significant decisions there is no answers to that question and we can illustrate that in particular by thinking about the idea of vaccinations so the court has long said that vaccination of children falls within this category of significant decisions so if the parents don't agree about whether we are charged to be immunised or received vaccinations the answer is that they must get the court order to determine this issue but in the summer of 2020 the Court of Appeal heard a case called REH Parental Responsibility Vaccination and I am going to talk about one aspect of that today but I just wanted to highlight I have written about a couple of other different spaces of an article that is just coming on October 2020 in the Law Quarterly Review of Corporate Responsibility Vaccinations and I am going to take an issue with some of the analysis of Lady Justice King who gives the judgment in that case to the Court's parents and what the Court can do I think she takes a very limited view of what the Court's role is and I take issue with her analysis of those kind of conclusions so if you are interested in looking at the edge further there is more to say than we are going to say in this lecture but focusing on today's issues let me just tell you briefly about this is a case obviously about the vaccination of a child but unlike in receipt which is a private dispute between the parents in REH it is a child who is in local authority care care order but the parents are opposed to the child receiving just the standard immunizations that all children receive the local authority wanted the children that the child wanted to have than those vaccinations following the president's decision in REH we just had a moment the local authority took the view that they would be as he had said ill-advised to rely on their parental responsibility and some of them made an application to the Court the High Court and Court of Appeal both held that the warning that the president had given about article 8 and the breach of the local authority proceeded using its own parental responsibility did not appeal to the issue of vaccination because they said it was not a sufficiently significant decision to invoke article 8 so contrary to the early authority we see which had required parents in private disputes to go to the Court they just as keen to consider that the issue was so straightforward and there were no realistic arguments that could be put against vaccination in a case where doctors recommended vaccination i.e. where the child didn't have a particular medical condition that was opposed to vaccinations that Lady Justice King is able to say this isn't going to be challengeable in the Court and so the local authority is free to proceed and if the parents try to challenge the local authority's decision they won't have good prospects and indeed the Court would not even entertain that challenge so there's a number of difficulties here and RH really throws some interesting challenges about parental responsibility and this duty to console so first of all it goes to show that this category of so-called significant decisions that the Court has created completely for itself has no principled content it's just an arbitrary list of things at the time the Court happens to think are important and Lady Justice King is very clear that if this case really should be about a private law dispute she would have said that we see with no longer vaccination or immunisation very clearly said to be a significant decision in 2003 but just 17 years later the Court of Appeals said no it's so obviously not controversial that of course it should be a landlord and there's no need to bring a court case about it and the second challenge that RH really throws up is the distinction between the RH judgment of the President and what Lady Justice King says in RH so why if the local authority relies on its parental responsibility to authorise a medical operation that a doctor says is in the chance of medically best interests is there a breach of Article 8 but a local authority authorising vaccinations that a doctor says are in the chance best interest but the parents approach is not bridging its current where's the difference between those two things and how do we know it the Lady Justice King tries to answer the question in her judgment in reaction so she says referring to the President's decision is unclear whether in making his observations the President meant to include all medical treatment of their nature or only of the type which he was concerned with in the case namely a desperately ill child she says in the unlikely event that this view was that the local authority couldn't use its powers in relation to any medical treatment then with the greatest of respect I would disagree so she tries to explain that she thinks the President's comments are just too broad he makes a sweeping comment about all kinds of medical treatment of any kind and Lady Justice King says it can't be as broad as that but what she doesn't do is answer the question where then is the line how do we know at least with the President's approach we know any medical treatment of any kind you can't rely on your private responsibility if you're a local authority you need a court order but Lady Justice King has completely thrown open the question of where the line is because there are a great many things between vaccinations to children with no reason on the one hand and the counter proposition that she puts forward in that quotation there a desperately ill child I mean if anything one might make an argument that the case where a child is desperately ill and therefore in urgent medical treatment the local authority should be more entitled to rely on its parental responsibility in the context of parents who have already had a child removed from their care because the child is suffering or at risk of suffering significant harm attributable to the care being provided by those parents then in the case of vaccinations where it's not really urgent it's not absolutely essential to have the vaccinations of overall children to have them but some children don't so in one sense you're saying that the more serious the issue is the more the local authority ought to be the one making the decisions but the real question is given what Lady Justice King has said here and the fact that she's removed the bright line of the President appeared to be sitting down and being bitten what are we supposed to take away from that as to the line where is the line of what a local authority can do with its parental responsibility and how is it to know what limitations article that puts on the exercise of its parental responsibility so I'm going to just wrap this up then and this is a lecture that I think has probably raised a lot more questions than it has offered answers and I guess to some extent I apologize for the issues that are phrased here I met to show that the substantive content of parental responsibility and the limitations of all the parental responsibility can do are really very clean and so for a provision which is stated so straightforward in the Children's Week which the courts have never felt any need to try to really define or explain in more detail there's actually one other not to say and a lot that isn't clean so I hope that has given you some things to think about in relation to parental responsibility but I think I hope it's also giving you some insights into the fact of the way that even some fairly fundamental concepts that underpin all of child law and bring that into all of family law I would say can start to unravel if you peel away the surface so thank you very much for your time for listening to the lecture I hope you found it interesting and we'll see you again thanks