Family – Parental responsibility is a duty and not a right
In the case of Re H-B (Children) (Contact) 2015, the Court considered what exactly the parent’s duties and responsibilities are in the aftermath of separation.
In this case, the parties had two children, J and K.
Following separation, the children lived with the Mother and had contact with the Father.
However, in June 2008 following an incident, the Mother applied for residence in her favour and an order for supervised contact.
The Father responded by seeking contact.
CAFCASS reported that the children confirmed they did not wish to see their Father.
During therapy sessions which occurred whilst proceedings were ongoing, the children made allegations against the Father. These allegations were rejected by the Judge at a fact finding hearing.
The Judge confirmed that Direct Contact could not take place until the children understood that the allegations they had made, had been rejected by the Court.
The Judge took the view that if the children were forced to have contact immediately, then it would likely cause long term harm to their trust in adults.
As such, no direct contact was ordered. There was however to be direct contact.
The Father restored the matter, by applying for contact.
In September 2013, the Judge concluded once again that there should only be indirect contact between the Father and the children every two months. This was in line with the advice of the children’s guardian.
In July 2014, the issue of contact was revisited. The Judge reaffirmed the twelve reasons why he had found in September 2013 that contact could not take place.
The Judge did consider whether it would be feasible to order direct contact, but rejected the idea because it would be damaging to the children, and was against all of the professional opinions given in the proceedings.
The Judge made an order prohibiting any further application by the Father for a specific period.
The Father appealed these Orders.
The Mother and children opposed the appeal.
The appeal was dismissed.
The Court of Appeal held there was nothing in the chronology of the proceedings that would lead the Court to criticise the way in which the legal system handled the case.
The Judge had made no mistake in his understanding of the law.
The order that he had made in relation to contact had been open to him in accordance with the law and nothing that had been said in argument had persuaded the court that he had erred in proceeding in the way he did.
It would be quite wrong to interfere with his careful evaluation of the prospects of establishing direct contact and of what would serve the best interests of the girls.
Reminders to Practitioners
This case acts as a reminder to practitioners to stress to clients that their parental responsibilities include the need to take steps to maintain a positive relationship between a child and the other parent following separation.
The Courts can and will scrutinise a parents conduct to decide whether or not they have fulfilled the duties they have to their children.
The case is also a reminder that parental responsibility focuses on duties and not rights. It exists for the benefit of a child and not the parents.
Finally, the judgement acts as a stark reminder of the damage that can be done to children in cases of overt and protracted hostility, and is a useful tool to remind parents of the potential long term consequences of obstructing a relationship between the child and the other parent.
This can be difficult for parents to consider in the throes of an emotional breakdown.
It is important to understand the definition of parental responsibility and what it involves.
Under the Children Act, parental responsibility means all the rights, duties, powers, responsibility and authority that, by law, a parent has in relation to their child and their child’s property.
It also includes the rights, powers and duties that a guardian of the child’s estate in relation to the child’s property.
Parental rights exist for the benefit of the child, not the parents, and are justified only insofar as they enable the parents to perform their duties towards the child and towards other children in the family.
Sharing Parental Responsibility
The Court confirmed that when a child is experiencing difficulties with either parent, both parents share the responsibility for trying to improve the position.
Guidance for parents to consider when understanding their parental duties and responsibilities in the aftermath of separation
On separation, the focus of any parent must be on what duties and responsibilities they owe to their child, and how they can and should exercise those responsibilities.
Parents should also consider the serious and lasting damage that can be done to a child’s emotional wellbeing if a parent fails to exercise their parental responsibility appropriately.
The damage can last for many years after the separation.
The guidance from Sir James Munby also provides a reminder that failing to adequately exercise parental duties can have lasting implications for the long term relationship between a parent and their child.
Sir James Munby also reminds parents that there will be times when exercising responsibilities will be challenging, and that sometimes they will have to make difficult decisions which involve overriding wishes of their children, rather than allowing them to make their own decisions.
A key part of parental responsibility is knowing when to allow a child to make a decision and when you have to make a decision for a child.
Parental duties and responsibilities and not parental rights
Many parents still wrongly believe that on separation, one parent will have greater “rights” over their children than the other. This then leads to a power struggle.
In reality, both parents have parental responsibility.
It is important that parents realise that they are equal in the eyes of the law and that the Court will look at what is best for the children when determining an issue in respect of a child.
It is also essential for parents to be aware that the Court will look at how they have exercised their duties towards their children, rather than what their rights are towards the child.
The Court will expect parents to demonstrate proactive behaviour in facilitating a relationship with the other parent and not leaving this to the other parent.
There are separated parenting programmes available to educate parents about parental responsibility.
It is important for parents to realise that Court proceedings are not in place to try and assert parental rights and will not have that focus.
Parents need to understand the damage parental conflict can be for a child and the impact it can have upon the whole family.
It is essential that parents realise that parental conflict is detrimental to children.
Avoiding unnecessary and drawn out litigation in Children Act Proceedings
It is felt that if parents understood how parental responsibility works and how it links to the arrangements for a child’s care, it may avoid drawn out litigation.
In view of the fact there is no legal aid available in Children Act proceedings, it is hard to see how people can have easy access to accurate information in respect of their legal status as a parent.
However, it is felt that the recent shift towards focusing on mediation and other forms of dispute resolution may also help with raising awareness of the impact of parental conflict on children, which if often underestimated by parents.
If you need assistance in respect of your matrimonial affairs, whether this is in respect of issues concerning a divorce and the related financial aspects, children, injunctions or cohabitation disputes, please contact our offices on 01323 727321 to arrange an appointment.
Please note that the family department offer a free initial 30 minute interview to provide general advice and guidance in relation to your matter.