Twenty years ago statutes referred to ‘parental rights and duties’, ‘rights and authority’ of the parent or ‘parental powers and duties’. The Law Commission in Guardianship and Custody (No172 in 1988) commented that such terms were misleading and did not promote the notion that parenting was more a matter of responsibility than rights. They preferred the term ‘Parental Responsibility’ and recommended its adoption into English law. This also recognised the Recommendation on Parental Responsibilities adopted in 1984 by the Committee of Ministers of the Council of Europe in R(84) 4:

‘the modern concept according to which parents are, on a basis of equality between parents and in consultation with their children, given the task to educate, legally represent, maintain etc their children. In order to do so they exercise powers to carry out duties in the interest of the child and not because of an authority which is conferred on them in their own interests’

Thus was ‘born’ (though not conceived) section 3 (1):

‘In this Act ‘parental responsibility’ means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in the relation to the child and his property.’

What is this thing called Parental Responsibility?

Inadequate definition of the term ‘Parental Responsibility ’, the meaning of which now changes on a case by case basis depending on a number of factors including the age and maturity of the child, and the lack of a list of what these ‘rights’ actually encompass, creates problems. Although in reality the terminology change from ‘rights’ to ‘responsibilities’ this changes very little in substantive law but represents a symbolic shift in the mindset of what parenthood might be composed. Lord Mackay LC in introducing the Bill (502 HL Official Report (5th Series) col 490.) said -

‘[Parental Responsibility]… emphasises that the days when a child should be regarded as a possession of his parents, indeed when in the past they had a right to his services and to sue on their loss, are now buried forever. The overwhelming purpose of parenthood is the responsibility for caring and raising the child to be a properly developed adult both physically and morally.’

Parental responsibility provides parents with the required duties and rights to bring children up, and, subject to state interest and law, parents have the freedom to do what they will in accordance with the welfare principle. Despite a lack of definition, in practice the courts have deliberated over many different issues that are concerned with a child’s upbringing and that list is by no means exhaustive.

Who are the chosen few?

A child may only have two parents but more people may have parental responsibility for that child; in modern families perhaps the only person ‘guaranteed’ to automatically acquire parental responsibility is the mother when she gives birth. Others may also acquire parental responsibility and includes a father in accordance with section 2 of the Children Act 1989 and section 111 of the Adoption and Children Act 2002, non-parents such as those appointed as guardians or granted a residence order, step-parents or local authorities when a care order is granted in accordance with section 31 of the Children Act 1989.

……… and what do they have to do?

All holders of parental responsibility to consult and agree if the best interests of the child are to be served, but this can undermine the decision making abilities of a parent and in reality there is no hierarchy. On a daily basis the parent with whom a child resides can make decisions without the need to consult or seek agreement from other interested parties, in accordance with s2(7) of the Act. To do otherwise is complicated and litigious, but it curtails the parental decision making authority.

The trauma of medical decision-making

This is an area of child law where both the child him or herself and/or the state can intervene and halt decision making capacities of those with parental responsibility. A Gillick-competent child with sufficient maturity and understanding has the ability to make decisions for him or herself. This parental authority where it is exercised only lasts as long as the child needs protection or assistance in making a decision. It does not give a child ‘carte-blanche’ to effectively ‘divorce’ their parents on the basis of being Gillick-competent. The case did lean towards the empowerment of children but did not go so far as to give complete child autonomy rights. A number of factors in determining Gillick-competency may be relevant. This includes the child’s understanding of the moral and family issues involved, as Scarman pointed out in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 189. The question of life experience may also be relevant in determining competency. For example, a child who has been raised in a strongly religious home with little interaction with other viewpoints is likely to be viewed as living a relatively sheltered life and so not judged to be competent. (See Re L (Medical Treatment: Gillick Competency) [1998] 2 FLR 810.)

One type of situation where the state becomes concerned involves cases of medical consent where there is conflict between the child’s wishes, the parents’ wishes and possibly the medical profession’s wishes, particularly in cases where a child refuses treatment. It is not enough that a child may understand the nature of their medical condition but they must also have an understanding of what the treatment entails and possible side effects, similarly in refusing treatment a child must show an understanding of the consequences. In Re R (A Minor) (Wardship: Consent to Medical Treatment) 1992 1 FLR 190 the Court of Appeal unanimously sanctioned the treatment given to the child. Lord Donaldson MR said, albeit obiter, that Gillick had decided that a competent child could consent to treatment but it did not decide that a competent child could veto treatment. It was his view that all those with parental responsibility (and the court!) reserved the right to consent to treatment even of a Gillick-competent child. A child’s power of veto was further scrutinised in Re W (A Minor) (Medical Treatment: Court’s Jurisdiction [1993] 1FLR 1). The limiting effect of the first case in applying Gillick was confirmed when a 16 year old refused treatment without which she would die. The differing factor here was that at that age the girl had a statutory right in accordance with the Family Law Reform Act 1969 section 8 to give valid consent. The question before the court was whether the statute or Gillick give the child a power of veto. The court held unanimously that neither the precedent not the statute gave such a power. A parent only loses exclusive rights to consent on a child becoming Gillick-competent and a court will consider a child’s wishes but may dismiss them in the best interest of the child. Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1992] FCR 785 went on to state that where a doctor wishes to treat a child then he needs a ‘flak jacket’ of consent (see John Eekelaar ‘White Coats and Flak Jackets – Doctors, Children and the Courts Again’ (1993) 109 LQR 182) and this consent could be given by either the parent or the Gillick-competent child. Doctors are sufficiently covered by the ‘flak jacket’ to avoid liability in either criminal or tortious proceedings. In Re M (Medical Treatment: Consent [1999] 2 FLR 1097) the refusal of a fifteen year old to a heart transplant was overridden by her mother consenting to the treatment; the Court of Appeal authorised the treatment without the need to consider Gillick-competency as the ‘flak jacket’ had been provided by the mother in the best interests of her daughter and the girl’s views were therefore considered (legally) irrelevant.

The state can override the wishes of those with parental responsibility where they refuse to consent to a child’s medical treatment. Parents are not permitted to make martyrs of their children (Black J, Re MM (Medical Treatment) [2000] 1 FLR 224) and the courts will authorise treatments where it is in the best interest of the child and ultimately, the state can intervene and substitute its own decision in place of either parent or child or both.

Can parents ‘pass the buck? Or have it removed?

Whilst parental responsibility cannot be abandoned it can be delegated to others and in some cases ‘extinguished’. The status of special guardianship was created by the Adoption and Children Act 2002 which amended the Children Act 1989 by the insertion of ss14A-G governing special guardianship orders. This gives the special guardian parental responsibility for a child while at the same time the child’s parents retain their parental responsibility (although greatly curtailed). A private law remedy has been created to give a more permanent status for non-parents where adoption is not an appropriate option. The Explanatory Notes to the 2002 Act say that a special guardian once ordered by a court will, for the duration of the order, take responsibility on a day-to-day basis for the child and have the ability and authority to make decisions affecting the child’s upbringing without the need, save in very few circumstances (eg adoption), to consult with others with parental responsibility. Such an order has an impact on the decision making abilities of those with parental responsibility and is another example of how the state can take steps to inhibit the rights of those holders who are not deemed suitable to make decisions in the best interest of the child. The Children Act 1989 encourages a sharing of parental responsibility so a local authority (unlike a special guardian) is required to consult and agree with others holding parental responsibility. In order to safeguard the welfare of the child however the Act does permit the local authority to determine the extent to which a parent or others holding parental responsibility can exercise their parental responsibility rights and duties in section 33 yet a local authority cannot make decisions to change a child’s religion, agree to an adoption or appoint a guardian. This mirrors the same extent of decision making a sole carer with parental responsibility can also undertake without the need to consult other holders. There are clearly issues that are too important to ignore parental wishes and consultation, and agreement from all holding parental responsibility is required on the most fundamental issues affecting a child’s upbringing.

Perhaps just some of it?

It seems to be that parental responsibility as a concept comes second in importance value to the welfare of the child and the state retains the statutory right to restrain the decision making abilities of all those with parental responsibility if it considers the holders unsuitable to make decisions in the best interest of the child or to hold the child’s welfare as paramount. It has been argued by academic writers (eg John Eekelaar, ‘Parental responsibility: State of Nature or Nature of the State?’ [1991] JSWFL 37) that the concept of parental responsibility represents two ideas; the first being that parents must behave dutifully towards their children and the second that the responsibility for raising children lies with the parents not the state. The second idea in particular upholds the notion of non-intervention and that raising children is a ‘private affair’, yet the state and the child can intervene in the process of decision making. When a child acquires sufficient capacity and maturity it is possible that the child can make decisions that affect his own well being; as a child grows older he acquires more rights and responsibilities and assumes more control over his decisions yet is still afforded the protection of an adult holding parental responsibility for him. It can be perhaps envisaged as a set of balance scales that as the child matures his rights increase and the parents’ decrease until they diminish. With this image it can perhaps then be understood why the courts have interpreted Gillick so restrictively; a child may be competent prima facie to make a decision affecting his own well being but he may not have the capacity to understand its affect on others at that moment or indeed how such a decision would affect his future status or even if he would feel the same way in the future, so to tip the balance early would be of detriment to the child’s welfare.

The state does recognise the private domain of the family and is reluctant to involve itself but holds the authority to intervene in the name of protecting the welfare of the child. In all the parents holding parental responsibility do retain rights albeit limited in some circumstances, and in this it can be seen that the child, and moreover the state, can limit the decision making abilities of those holding parental responsibility.

Immunity from suit.
An expert witness, just like a lay witness, enjoys immunity from suit at the behest of his client once he has given evidence in court. In Stanton v Callaghan, [2000] QB 75, the allegedly negligent surveyor did not give evidence in court but caused the collapse of his client’s case when he changed his mind following a joint discussion with the other side’s expert. The Court of Appeal was not prepared to grant the expert immunity as of right but required that immunity to be justified in the public interest (which, on the facts, it was). Otton LJ (at 105B) accepted the principle that the policy reasons underpinning the immunity of experts might differ from field to field (e.g. expert accountants may find themselves liable to meet very large claims indeed if immunity was abolished). This idea was picked up by Thorpe LJ in Meadow. Thorpe LJ emphasised that the market for experts in the Family Justice System was different from the Civil and Criminal Systems: most of the experts were doctors; their fees went to their employers; and, their had to accommodate their court work outside their normal full time role. This market was “very sensitive to increasing or newly emerging disincentives”: (ibid) at [227]. Thorpe LJ thought that different considerations should apply to the immunity given to this market. Clarke MR and Auld LJJ were having none of this. Rightly, they emphasised that such a distinction would be “highly case-sensitive and difficult to draw on a case by case basis”: (ibid) at [116] & [67]. There are many strong arguments for abolishing an expert’s immunity from suit (including the point that many experts are not members of a professional body and so, even after Meadow, the client of a negligent expert has no effective redress). But, if this immunity is to be abolished (and the debate still rages about this), it should be abolished for all experts or not at all.

Mark James is a barrister at 1 Temple Gardens, Temple, London and is the author (with Tristram Hodgkinson) of ‘Expert Evidence: Law and Practice’ (2nd ed., 2007)(Sweet & Maxwell). Penny Harper is a Director at Bond Solon.