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> Key Areas of Parental responsibility
Key Areas of Parental Responsibility
Consultation with Children
Parents (and others exercising parental responsibility) are not legally obliged to consult their children as to their wishes or to involve them in decision making processes.
However, the exercise of parental responsibility is limited when children have sufficient understanding and capacity to make decisions about their own future. This was confirmed in the 1985 decision in Gillick v Wisbeach Health Authority, in which the House of Lords decided that a child under 16 could consent to medical treatment if he or she could understand what was involved in such treatment and was capable of expressing his or her views and wishes. This has come to be known as ‘Gillick competence’ and while the House of Lords did not identify a specific age at which children were to be deemed to be sufficiently mature to have their views considered, it follows from Gillick that the older the child, the greater the weight that will be attached to their views. This approach is consistent with certain provisions of the UNCRC – Article 5 which requires that children’s rights be exercised in accordance with their evolving capacities and Article 12 which requires that in all decisions effecting children due weight should be attached to their views.
In 2006 the High Court applying Gillick, confirmed that young people were entitled to confidential advice or treatment on sexual matters, which includes abortion, without the knowledge or consent of their parents. This position does not breach the child’s parent’s rights to private and family life under Article 8 ECHR.
Names
A child’s parents have an unfettered right to name their child and are required by law to register the child’s name within 42 days of the child’s birth. Where only one person has parental responsibility that person can change the child’s name (e.g by deed poll) without requiring the consent or permission of anyone else. Where there is more than one person with parental responsibility and dispute as to change of name then it will be necessary to seek the court’s permission. The court will consider a range of factors but the paramount consideration will be the welfare of the child. The opinions of a older child are likely to be highly relevant. A change of name is considered to be serious step, relating as it does to a child’s identity.
Where a child becomes the subject of an adoption order, the adoptive parents acquire parental responsibility and have an absolute right to change a child’s name.
With parental consent a child may use a different name from that on their birth certificate. A child of sixteen may change their name without their parent’s consent. (A parent may apply to court in an attempt to prevent this but is unlikely to be successful).
Equally, a child with sufficient maturity and understanding who is under the age of sixteen may apply to the court for permission.
Religion
A child who is sufficiently mature in accordance with the Gillick principles is entitled to choose his or her own religion. Where a dispute arises either between parents or between parents and the child over the choice of religious upbringing, the paramountcy of the child’s welfare will prevail in resolving the conflict. If a parent seeks to impose a particular religion on a child it will not be tolerated if it causes harm to the child. Article 9 of the ECHR protects the right to freedom of thought, conscience and religion. (See also education, below).
Medical Treatment
In most cases it will be the parents who consent to medical treatment on behalf of their child. A child/young person can give valid consent provided the person providing treatment is of the view that he or she understands the nature and consequences of the treatment (ie that they are Gillick competent). At the time of writing the General Medical Council were seeking the views of children and young people in order to draft guidance to doctors as to the treatment of children.
Children under 18 may also refuse medical treatment but under the wardship jurisdiction a court can order medical treatment, including termination of a pregnancy or sterilisation, if it is deemed necessary in the child’s best interests. This power is most commonly used in cases where a young person refuses life saving medical treatment due as a consequence of an eating disorder or mental illness.
The ECHR has decided that compulsory medical treatment for the purposes of preventing death or serious injury does not amount to inhuman or degrading treatment contrary to Article 3 ECHR where a patient is not capable of giving consent.
See: THE HUMAN RIGHTS ACT 1998
Consent to Marriage
There is no specific criminal offence of forced marriage, although the Foreign and Commonwealth Office deal with cases of UK children as young as 13 being forced into marriage.
A marriage where one party is under 16 is void. Young people between 16 and 18 may marry with parental consent. If the parents are separated or divorced the consent of both parents is necessary and if the child is in the care of the local authority it is necessary to obtain the consent of all persons having parental responsibility for the child.
Article 12 of the Convention protects the right of men and women of ‘marriageable age’ to marry. The prohibition on the marriage of children under 16 years does not infringe the right to marry because Article 12 clearly permits states to regulate the age at which a person is able to marry.
Similarly, it is not possible to enter into a civil partnership if under the age of 16. A young person of 16 or 17 may only register a civil partnership with the consent of their parents.
Corporal Punishment
In international law physical punishment of children is totally prohibited. However, in the UK parents still have the right to administer reasonable physical chastisement to a child. It is possible to defend a charge of common assault against a child on the basis that the force used was no more than reasonable punishment. This position has been strongly criticised by the UN Committee, and by the Children’s Commissioners for England, Wales, Scotland and Northern Ireland, who in 2006 issued a joint statement condemning the UK’s position and calling for an outright ban on the physical punishment of children.
Corporal punishment is prohibited as a form of punishment in all other circumstances including as a punishment following conviction for an offence, in education and in care or foster homes.
In 2005 the UK House of Lords held that the ban on corporal punishment in independent schools did not amount to a breach of the parents’ rights under Articles 8 and 9 ECHR. Parliament was bound to respect a religious belief in corporal punishment in school, but entitled to legislate in children’s best interests against the manifestation of that belief.
Leaving Home
Generally, young people under 16 cannot leave home unless their parents agree.. The law relating to 16 to 17 year olds is not clear but it appears that they probably can leave home without parental consent. In theory, parents can apply to court for the return home of a child under 18 by seeking an injunction in wardship proceedings or a residence order. However, a court is extremely unlikely to order a child of 16 to 17 to return home against his or her wishes.
A court may make a residence order in favour of another adult if this is deemed to be in the child’s best interests. This can be done on the adult’s application or by the child if he or she is deemed to have sufficient understanding. The leave of the court is required,
Police will return a runaway child under 16 to his or her parents or to the local authority if he or she is in care unless they have reasonable cause to believe the child is in danger or at risk. In such circumstances the police may hold the child in police protection. The police then liaise with social services as to whether further action should be taken to protect the child. The police are unlikely to return a child over the age of 16 to his or her parents.
Ages of Consent
The legal definition of childhood remains quite fluid, and while children do not acquire full independence until they reach the age of 18 they can legally engage in certain adult activities before that age.
At 16 a young person can consent to sex, join the armed services (although they will not generally be deployed on active service until they are 18) and get married with their parent’s consent. Whereas 16 year olds have traditionally been able to buy cigarettes, in October 2007 the minimum age will rise to 18.
Parents (and others exercising parental responsibility) are not legally obliged to consult their children as to their wishes or to involve them in decision making processes.
However, the exercise of parental responsibility is limited when children have sufficient understanding and capacity to make decisions about their own future. This was confirmed in the 1985 decision in Gillick v Wisbeach Health Authority, in which the House of Lords decided that a child under 16 could consent to medical treatment if he or she could understand what was involved in such treatment and was capable of expressing his or her views and wishes. This has come to be known as ‘Gillick competence’ and while the House of Lords did not identify a specific age at which children were to be deemed to be sufficiently mature to have their views considered, it follows from Gillick that the older the child, the greater the weight that will be attached to their views. This approach is consistent with certain provisions of the UNCRC – Article 5 which requires that children’s rights be exercised in accordance with their evolving capacities and Article 12 which requires that in all decisions effecting children due weight should be attached to their views.
In 2006 the High Court applying Gillick, confirmed that young people were entitled to confidential advice or treatment on sexual matters, which includes abortion, without the knowledge or consent of their parents. This position does not breach the child’s parent’s rights to private and family life under Article 8 ECHR.
Names
A child’s parents have an unfettered right to name their child and are required by law to register the child’s name within 42 days of the child’s birth. Where only one person has parental responsibility that person can change the child’s name (e.g by deed poll) without requiring the consent or permission of anyone else. Where there is more than one person with parental responsibility and dispute as to change of name then it will be necessary to seek the court’s permission. The court will consider a range of factors but the paramount consideration will be the welfare of the child. The opinions of a older child are likely to be highly relevant. A change of name is considered to be serious step, relating as it does to a child’s identity.
Where a child becomes the subject of an adoption order, the adoptive parents acquire parental responsibility and have an absolute right to change a child’s name.
With parental consent a child may use a different name from that on their birth certificate. A child of sixteen may change their name without their parent’s consent. (A parent may apply to court in an attempt to prevent this but is unlikely to be successful).
Equally, a child with sufficient maturity and understanding who is under the age of sixteen may apply to the court for permission.
Religion
A child who is sufficiently mature in accordance with the Gillick principles is entitled to choose his or her own religion. Where a dispute arises either between parents or between parents and the child over the choice of religious upbringing, the paramountcy of the child’s welfare will prevail in resolving the conflict. If a parent seeks to impose a particular religion on a child it will not be tolerated if it causes harm to the child. Article 9 of the ECHR protects the right to freedom of thought, conscience and religion. (See also education, below).
Medical Treatment
In most cases it will be the parents who consent to medical treatment on behalf of their child. A child/young person can give valid consent provided the person providing treatment is of the view that he or she understands the nature and consequences of the treatment (ie that they are Gillick competent). At the time of writing the General Medical Council were seeking the views of children and young people in order to draft guidance to doctors as to the treatment of children.
Children under 18 may also refuse medical treatment but under the wardship jurisdiction a court can order medical treatment, including termination of a pregnancy or sterilisation, if it is deemed necessary in the child’s best interests. This power is most commonly used in cases where a young person refuses life saving medical treatment due as a consequence of an eating disorder or mental illness.
The ECHR has decided that compulsory medical treatment for the purposes of preventing death or serious injury does not amount to inhuman or degrading treatment contrary to Article 3 ECHR where a patient is not capable of giving consent.
See: THE HUMAN RIGHTS ACT 1998
Consent to Marriage
There is no specific criminal offence of forced marriage, although the Foreign and Commonwealth Office deal with cases of UK children as young as 13 being forced into marriage.
A marriage where one party is under 16 is void. Young people between 16 and 18 may marry with parental consent. If the parents are separated or divorced the consent of both parents is necessary and if the child is in the care of the local authority it is necessary to obtain the consent of all persons having parental responsibility for the child.
Article 12 of the Convention protects the right of men and women of ‘marriageable age’ to marry. The prohibition on the marriage of children under 16 years does not infringe the right to marry because Article 12 clearly permits states to regulate the age at which a person is able to marry.
Similarly, it is not possible to enter into a civil partnership if under the age of 16. A young person of 16 or 17 may only register a civil partnership with the consent of their parents.
Corporal Punishment
In international law physical punishment of children is totally prohibited. However, in the UK parents still have the right to administer reasonable physical chastisement to a child. It is possible to defend a charge of common assault against a child on the basis that the force used was no more than reasonable punishment. This position has been strongly criticised by the UN Committee, and by the Children’s Commissioners for England, Wales, Scotland and Northern Ireland, who in 2006 issued a joint statement condemning the UK’s position and calling for an outright ban on the physical punishment of children.
Corporal punishment is prohibited as a form of punishment in all other circumstances including as a punishment following conviction for an offence, in education and in care or foster homes.
In 2005 the UK House of Lords held that the ban on corporal punishment in independent schools did not amount to a breach of the parents’ rights under Articles 8 and 9 ECHR. Parliament was bound to respect a religious belief in corporal punishment in school, but entitled to legislate in children’s best interests against the manifestation of that belief.
Leaving Home
Generally, young people under 16 cannot leave home unless their parents agree.. The law relating to 16 to 17 year olds is not clear but it appears that they probably can leave home without parental consent. In theory, parents can apply to court for the return home of a child under 18 by seeking an injunction in wardship proceedings or a residence order. However, a court is extremely unlikely to order a child of 16 to 17 to return home against his or her wishes.
A court may make a residence order in favour of another adult if this is deemed to be in the child’s best interests. This can be done on the adult’s application or by the child if he or she is deemed to have sufficient understanding. The leave of the court is required,
Police will return a runaway child under 16 to his or her parents or to the local authority if he or she is in care unless they have reasonable cause to believe the child is in danger or at risk. In such circumstances the police may hold the child in police protection. The police then liaise with social services as to whether further action should be taken to protect the child. The police are unlikely to return a child over the age of 16 to his or her parents.
Ages of Consent
The legal definition of childhood remains quite fluid, and while children do not acquire full independence until they reach the age of 18 they can legally engage in certain adult activities before that age.
At 16 a young person can consent to sex, join the armed services (although they will not generally be deployed on active service until they are 18) and get married with their parent’s consent. Whereas 16 year olds have traditionally been able to buy cigarettes, in October 2007 the minimum age will rise to 18.
