Parental Responsibility And Court Order: Advice For Bilal

What is Parental Responsibility?

Bilal and Juliette have been living together for 12 years and have two children, Karim (10 years old) and Carla (5 years old). About six months ago, Bilal and Juliette separated, and Juliette moved in with her new partner Chris. Juliette has taken Chris’s surname and wants the children to have the same surname. She also wants Karim to be circumcised to reflect her new religion and she also wants Carla to have the MMR vaccination which Bilal objects to. Bilal has recently been charged with illegally protesting outside the Ministry of Justice and has received a community sentence. Consequently he has lost his job and is suffering from severe depression. He feels that Juliette is not raising the children as he would like and wants a greater say in their upbringing.

Advise Bilal as he wishes to apply for a Parental Responsibility Order.

Bilal and Juliette have lived together for 12 years and have two children, Karim and Carla. About six months ago, they got separated and Juliette shifted with her new partner Chris. Juliette took the surname of Chris and wanted her children also to take his surname. Additionally, she wanted to circumcise Karim as a reflection of her religion and also wanted Carla to be vaccinated with MMR. Bilal, however as an objection to this and Juliette refuses to listen to Bilal. Bilal has recently been charged with illegally protesting outside the Ministry of Justice and has received a community sentence. Consequently he has lost his job and is suffering from severe depression. He feels that Juliette is not raising the children as he would like and wants a greater say in their upbringing. Based on the facts, the issue that arises here is, whether Bilal can apply for Parental Responsibility Order and what are his chances of success of such an application.

Parental Responsibility is a legal status that is derived from the “Children Act, 1989” as part of family law. Parental Responsibility is defined in section 3 sub section 1 of the “Children Act, 1989” as, the rights, duties and power of a parent as given to them by law, of a child, in relation to the child and child’s property (Fernando 2014). This means that it is the responsibility of the parent to focus on their duties that they have towards their child rather than their rights over the child. Generally, the mother of the child is considered to have parental responsibility of her child since the birth of the child. However, in certain cases the father may also have parental responsibilities if he is married to the child’s mother and if his name is noted on the certificate of birth of the child (Mason, Laurie and Smith 2013). If the father is not married to the mother of the child then he may not have the authority to make important decisions regarding the children. If fathers want their children’s right then he may apply for an order that is called Parental Responsibility Order. When couples are married to each other they already have this responsibility. This means that since the birth of their child they have duties and responsibilities towards their children rather than rights over their child (Lester 2015). As a father of the child he has the right to be informed about the child’s education, health and welfare. Residence order provides parental responsibility to people who are not biological fathers of the child such as step father or some other family relative of the child. This means that more than one person can obtain parental responsibility of the child (Husain 2016).

How to Obtain Parental Responsibility?

According to “the Adoption and Children Act, 2002”, changes were made in the ways in which the biological but single fathers can have the right to acquire parental responsibility of the child. The father of the child may apply for an order of parental accountability if his name is mentioned on the certificate of birth of the child. Fathers who were not married and whose name is mentioned on the birth record, before the Act was passed, shall not involuntarily acquire parental liability but they will have to apply for an order from the Court or enter into an contract with the mother (Coles et al.2016).  Additionally, if the parents of the child are married when the child is born or they have together adopted the child then both the parents may have parental accountability. A single father can obtain parental responsibility of the child in any of the following three ways, firstly, registering jointly the birth of the child with the mother. Secondly, entering into an agreement with the mother and thirdly obtaining an order from the Court for such responsibility. This is applicable for parents whose children are born in England and Wales. For children who were born in Scotland, the father has parental responsibility if he is married to the mother of the child at the time when the child is conceived (Mrazek and Kempe 2014). For children who were born in Northern Ireland, the father gets parental duty if he is married to the mother of the child at the time when the child is born. If a child is born outside UK however later he comes to UK then the father may acquire parental accountability depending on the UK country in which they are living in. Partners, who have same sex, shall acquire parental responsibility if they were civil partners at the time of management of infertility (Abrines-Jaume et al. 2016). For partners of same sex but not civil partners, the 2^nd partners can acquire the position of parental responsibility by applying for parental responsibility in the Court or if the partners entered into an agreement before the child was born (Tan et al. 2015).

Fathers and mothers of children have rights and duties as a parent; this is known as Parental Responsibility. As a parent, one must provide home to the child and maintain and protect the child. If a parent obtains parental responsibility of the child he does not stay with, then the other parent needs to keep the parent updated about their progress and well being. Once the person obtains parental responsibility of the child then he has the duty of disciplining the child, providing and making important decisions related to the education of child and providing appropriate medical treatment to the child (Roberts 2015). Parents have to make sure that there child is supported financially and emotionally whether or not they have parental responsibility. Hence, parental responsibility means power of the parents to take important decisions in relation to the child. The decisions may be related to the determination of the religion of the child that he or she may be brought up with. In cases, where there is a mixed religious or cultural background of the parents, a disagreement may appear between them as to the cultural surroundings with whom the child is to be brought up with. In such cases, the child shall be brought up with the mixed culture of both the parents until the child becomes an adult to decide his culture himself (Barker, 2016). However, parental dependability does not mean that the parent has the habitual right to contact the child or know about the whereabouts of the child. Contacting with the child is the right of the child and not the right of the person who has acquired parental accountability of the child.

Bilal's Situation and Parental Responsibility

If parents are married to each other, then none of the parents need to obtain consent from the other in registering the name as mother or father in the birth certificate of the child. However, if parents are not married to each other, then consent will be required as whose name shall be entered as parents in the birth record of the child. If the name of the father is entered into the birth certificate it shall be easier for the father to obtain parental responsibility of the child. In case there is a disagreement between the mother and father of the child as to whose name shall be entered into the birth certificate, then the father may apply for “Parental Responsibility Order” from the Court (Smietana et al. 2014). Both the parents need to be present at the Register office at the time of registration of the birth of the child. If either of the parents fails to attend the registration of the child then he has to submit the statutory declaration agreeing that he or she has no objection to the name that is being put on the birth certificate. The declaration is formal document that should be signed by either by a solicitor or commissioner of the Courts. If the mother does not consent to put the name of the father on the birth record then he may apply for Parental Responsibility Order (Zee 2015). If none of the parents are available at the Register Office for registration of the child’s birth then, the occupier of the house or hospital or someone who was near at the birth of the child or someone who is accountable for the child may become the registered parent of the child. Parental Responsibility is non transferable, this means that the person who has obtained parental responsibility can share his responsibility with some other person however; he cannot transfer his responsibility with some other person. A “parental responsibility agreement” is an agreement that is made between the father and mother of the child to allow the unmarried father to obtain Parental Responsibility (Horspool and Humphreys 2012). However, agreement of both the parents is needed for this order. This type of contract is suitable when both parents agree to the unmarried father for obtaining parental responsibility.  

Parental Responsibility Order is an order that unmarried fathers can apply for when the mothers of the child refused to allow the father from being registered in the birth certificate. The process involves the father to make a request to the Court to decide whether or not they can obtain an order of Parental Responsibility (Baker 2015). Mothers are given a chance to put forward the reasons as to why she refused the father to acquiring Parental liability. For example, if the mother has any welfare concerns of the child. In such a scenario, the Court has the authority to decide whether the father can obtain Parental Responsibility or not. Courts have the authority to reject Parental Responsibility Orders if the Courts think that the father can misuse this order in the future to hinder in the care of mother for the child. This may put pressure on the mother and also undermine her capabilities to care for herself and care for the child. This decision was taken in the case of Re M (Contact: Parental Responsibility) [2001]. In this case, the parental responsibility order was denied however, the father of the child was allowed to visit the child for three to five hours in the year. The Court may also reject the Parental Responsibility Order if the father injured the child and displayed violence towards the mother and the child. This was held in the case of Re H (Parental Responsibility) [1998]. If the father is seen to have obscene photographs of children, the Court may reject the order of Parental Responsibility (Re P (Parental Responsibility) [1997]). If the child is born out of a lesbian relationship, via artificial conception that was facilitated by the brother of any of the women, then it would be contradictory to grant the brother, father or uncle to grant Parental Responsibility (Hantrias and Letabiler 2014). This was decided in the case of Re B (Role of Biological Father) [2008].

How to Apply for a Parental Responsibility Order

In the given case study, Bilal can apply for Parental Responsibility Order. He fulfilled all the criteria that are required for applying for the Parental Responsibility Order. As a father of both the children he has the authority to take important decisions in behalf of them. As it is seen from the case study that Bilal and Juliette had disagreements regarding the upbringing of the child, as Juliette wants to circumcise Karim as a reflection of her religion and give MMR vaccination to Carla. Matters relating to religion are sensitive in nature and should be dealt with sensitively. Bilal raised his objection; however, Juliette did not pay much heed to the protest of Bilal. Additionally, the present situation of Bilal is not acceptable for him to assume the status of parental responsibility. Considering that he has received community sentence and has lost his job, it shall not be advisable for him to take responsibility of the child unless he serves his sentence and gets proper job for his survival. There are a lot of chances that the Court will reject the application of Bilal for parental responsibility as his present situation is not suitable for him to obtain the position. Additionally, he is also suffering from depression. So he will have to wait till he becomes both mentally and financially well. Juliette wanted their children to use the surname of Chris, and she also wants to use the surname of Chris. The general rule for changing the surname is that permission of the Parental Order is required however; if the father has not obtained the position of parental responsibility then the mother may change the surname of children. In the case of Bilal and Juliette, the court will analyze whether the change of surname will be in the best interests of the child or not. If the Court feels that using the surname of Chris shall not be in favor of the children, then he may restrict Juliette from changing the children’s surname. It is therefore advisable for Bilal to first complete his sentence and get settled with his life and then he may apply for Parental Responsibility Order. Application of parental responsibility is in the hands of the unmarried father; however approval of the same lies in the hands of the Court. Acquiring the role of a parental responsibility is not an easy task and that is why the Court can exercise their discretion for approving the same. Bilal needs to understand that the task of acquiring Parental Responsibility means ability to take important decisions in relation to the child. The important decision may include determination of the religion of the child, taking important decisions relating to the education of the child, or taking decisions that are related to the medical treatment of the child. The job of a person acquiring parental responsibility is not easy, it requires commitment and concentration and at this moment Bilal lacks in both. From the perspective of the child’s welfare it will be against their interests so it will be good for the children to continue their stay with their mother until Bilal becomes mentally, financially and emotionally fit to take the responsibility of their children. However, restriction from acquiring parental responsibility order does not restrict Bilal from meeting his children on a regular basis. He shall continue to have the right to meet his children and also know about the whereabouts of the child. This means that Bilal shall continue to keep himself updated about his children.

Factors Considered by Court in Deciding Parental Responsibility Order

In cases similar to Bilal and Juliette, it is always advisable to make settlements out of Court. The reason behind this is that once the matter reaches the Court, the decision of the Court shall be treated as final and enforceable. Knowing that Bilal is in a weaker position and that there are a lot of chances that the Court may reject his application he should wait till his position becomes stable. Instead, Bilal and Juliette should take help from the mediator to solve their issues related to children. Mediation is regarded as the best way to solve matters related to children, Bilal and Juliette can attend the Mediation Information and Assessment Meeting (MIAM) to gain support for matters related to their children.

References:

Abrines-Jaume, N., Midgley, N., Hopkins, K., Hoffman, J., Martin, K., Law, D. and Wolpert, M., 2016. A qualitative analysis of implementing shared decision making in Child and Adolescent Mental Health Services in the United Kingdom: Stages and facilitators. Clinical child psychology and psychiatry, 21(1), pp.19-31.

Baker, C., 2015. Shades of intolerance: the influence of terrorism on discriminatory attitudes and behaviors in the United Kingdom and Canada(Doctoral dissertation, Rutgers University-Graduate School-Newark).

Barker, N.J., 2016. Rethinking Conjugality as the Basis for Family Recognition: A Feminist Rewriting of the Judgment in Burden v. United Kingdom. Onati Socio-Legal Series.

Coles, E., Cheyne, H., Rankin, J. and Daniel, B., 2016. Getting It Right for Every Child: A National Policy Framework to Promote Children's Well‐being in Scotland, United Kingdom. The Milbank Quarterly, 94(2), pp.334-365.

Fernando, M., 2014. Family Court Review, 52(1), pp.46-59.

Gillespie, A.A., 2013. Child protection systems in the United Kingdom: a comparative analysis. Journal of Social Welfare and Family Law, 35(2), pp.272-275.

Hantrias, L. and Letabiler, M.T., 2014. Families and family policies in Europe. Routledge.

Horspool, M. and Humphreys, M., 2012. European Union Law. Oxford University Press.

Husain, R., 2016. International Human Rights and Refugee Law: The United Kingdom. In Human Rights and the Refugee Definition (pp. 138-155). Brill.

Lester, S., 2015. The State and the Operation of Sharia Councils in the United Kingdom: A Critical Response to Machteld Zee.

Mason, K., Laurie, G. and Smith, A.M., 2013. Mason and McCall Smith's law and medical ethics. Oxford University Press.

Mrazek, P.B. and Kempe, C.H. eds., 2014. Sexually Abused Children & Their Families. Elsevier.

Roberts, M., 2015. A view from the coal face: interdisciplinary influences in family mediation in the United Kingdom. Journal of Comparative Law, 9(2), pp.108-118.

Smietana, M., Jennings, S., Herbrand, C. and Golombok, S., 2014. 11 Family relationships in gay father families with young children in Belgium, Spain and the United Kingdom. Relatedness in Assisted Reproduction, p.192.

Tan, A., Bharj, A.K., Nizamoglu, M., Barnes, D. and Dziewulski, P., 2015. Assaults from corrosive substances and medico legal considerations in a large regional burn centre in the United Kingdom: calls for increased vigilance and enforced legislation. Scars, Burns & Healing, 1, p.2059513115612945.

Zee, M., 2015. The State and the Operation of Sharia Councils in the United Kingdom: A Response to Shona Lester.