Return to Contents

The Jersey Law Review – February 2006

PARENTAL RESPONSIBILITY AND THE PROTECTION OF CHILDREN

Giles Robinson

Introduction

1       In July 2005 the author was privileged to take part in a conference organised by the Jersey Family Law Association and to speak on the Children (Jersey) Law 2002 (“the Children Law”) which came into force on 1^st August, 2005.[1]  As a solicitor practising in England and Wales he has long been familiar with many of the provisions now incorporated in the Children (Jersey) Law 2002 as many of these replicate the Children Act 1989.  Where possible, some of these concepts will be explained in the context of experience of the approach taken by the English Courts.

Parental responsibility

2       An understanding of the concept of parental responsibility, who has it, and who can acquire it, is critical.  Parental responsibility is defined as being “all the rights, duties, powers, responsibilities and authority which the father of a legitimate child had in relation to the child and his property prior to the commencement of Part one, save that rights in respect of custody shall not be exclusive”.[2]  Essentially this means “being a parent”.  A person who has parental responsibility has the right to make important decisions about a child’s education, religion, health care etc.

3       The next question to address, however, is who has such responsibility.  The mother of a child has it automatically.[3]  This is not the position of the father, however.  If he was married to the mother at the time of the child’s birth they will share parental responsibility.  This is also the position where there is a legitimated child.  An unmarried father does not automatically acquire parental responsibility.  He must either enter into a parental responsibility agreement with the mother or apply to the Court for a parental responsibility order.[4]  This provision duplicates the Children Act 1989 in England and Wales (before its recent amendment).  Parliament never intended to suggest that unmarried fathers at large are not competent to have parental responsibility, but merely to protect women who are in vulnerable groups (such as victims of rape, domestic violence, or those who have been involved in casual relationships and who perhaps do not even know the name of the father).  On an application for parental responsibility the child’s welfare shall be the Court’s paramount consideration.  Case law in England has generated a test for an unmarried father to satisfy when applying for parental responsibility so that the Court must consider -

(a)     the degree of commitment which the father has shown towards the child;

(b)     the degree of attachment which exists between the father and the child;

(c)     the reasons of the father for applying for the order.[5]

4       Increasingly, English case law has recognised that all that was being conferred upon the unmarried father was “the status of parenthood for which nature has already ordained that he must bear responsibility”.[6]  Accordingly, an average, reasonable, unmarried father would expect to be able to acquire parental responsibility.  The cases when he has not been able to do so have been relatively rare and have generally involved situations when the father has shown no commitment to the child, has undermined the home in which the child is living (perhaps by denigrating the mother) or has physically harmed the child.

5       Accordingly, if a father seeks parental responsibility a mother may choose to enter into a parental responsibility agreement with him, rather than go through a difficult court battle which is likely to lead to that outcome.  A parental responsibility agreement must be completed in the form provided by the rules.[7]

6       Mothers should think about conferring parental responsibility on unmarried fathers in any event.  If they do not do so and then die without appointing a guardian there will be no one with parental responsibility able to take decisions on behalf of the child in the future.

7       Only an unmarried father can enter into a parental responsibility agreement or apply for a parental responsibility order.  This is not an option open to third parties (such as grandparents, step-fathers, same sex partners).  There is, however, another way in which such third parties can acquire parental responsibility for a limited period. 

8       The only way in which a mother or married father can lose parental responsibility is if the child is freed for adoption, or an adoption order is made.  An unmarried father who has acquired parental responsibility, whether by agreement or order, is not in such a certain position.  His parental responsibility may be terminated by the Court on an application by anyone with parental responsibility or the child.[8]  In England such applications are rare, which is hardly surprising given the tendency in favour of granting parental responsibility.  An example arose in one reported case where a father had acquired parental responsibility by entering into an agreement with the mother.  Subsequently he caused serious injuries to his child leaving the child permanently disabled.  An application to the Court for termination of his parental responsibility was successful.[9]

9       For those involved in public child law one question may be whether a mother might enter into a parental responsibility agreement with an unmarried father when the children are subject to interim care orders.  In England it has been decided that this was a discrete issue and that the local authority could not prevent the mother from doing so.  She could, after all, marry the father and consequently confer parental responsibility upon him.[10]

10     The Children Law provides that when more than one person has parental responsibility for a child each of them may act alone and without the other in meeting that responsibility (save where any enactment requires the consent of more than one person in a matter affecting the child.)[11]  However, in a case where parents have fallen out this can clearly lead to difficulty.  Case law in England has resulted in a number of situations where it has been said that one person with parental responsibility may not act without the consent of the other person with parental responsibility.  These situations include change of name, sterilisation, circumcision, immunisation and emigration.

11     Assuming that parental responsibility acquired by order or agreement is not brought to an end sooner, it will continue until the child reaches the age of 18 years.[12]

PRIVATE CHILD LAW  

Article 10 orders

12     There are four primary orders which may be applied for under article 10 of the Children Law.  They are a contact order, a prohibited steps order, a residence order and a specific issue order.   These orders are not just available to the parents.  Indeed, any person is entitled to apply if leave is first granted.   

13     Any parent or guardian of the child, or any person in whose favour a residence order is in force with regard to the child is entitled to apply for any article 10 order with regard to a child.

14     In addition however, certain individuals are automatically entitled to apply for residence and contact (only) with regard to a child, namely -

(a)     any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family – which would enable a step-father to make an application for residence or contact in relation to his step-child;

(b)     any person with whom the child has lived for a period of not less than twelve out of the fifteen months immediately preceding the application (which might enable a cohabitant, or even same sex partner or older brother or sister to make an application);

(c)     any person who -

(i)      in any case where there is a residence order in force with respect to the child, has the consent of each of the person in whose favour the order was made;

(ii)      in any case where the child is in the care of the Minister has the consent of the Minister; or

(iii)     in any other case, has the consent of those (if any) who have parental responsibility for the child.[13]

15     Any other person may apply for one of the four orders if leave of the Court is obtained to do so.  The Court, in deciding whether or not to grant leave, will consider -

(a)     the nature of the proposed application for the article 10 order;

(b)     the applicant’s connection with the child;

(c)     any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it (note that this does not refer to the outcome of the application disrupting the child’s life but the application itself);

(d)     where the child is being looked after by the Minister -

(i)      the Minister’s plans for the child’s future;

(ii)      the wishes and feelings of the child’s parents.

16     In England case law has also suggested that -

(a)     if the application is frivolous, vexatious or an abuse of process it must fail;

(b)     if the applicant fails to disclose that there is any eventual real prospect of success, or the prospect is so remote as to make the application unsustainable, then the application for leave should be dismissed[14].

17     It is the provision in paragraph 15 above which, of course, could be utilised by grandparents, aunts, uncles or others to apply for orders to which they are not automatically entitled.

Residence order

18     A residence order settles the arrangements to be made as to the person with whom a child is to live.  It could be made for a time limited period.  It is worthy of note, however, that unless brought to an end by some other order it will go on until the child reaches the age of 16 years (not 18 years) unless the Court is satisfied that the circumstances of the case are exceptional, in which case it will automatically cease when he reaches the age of 18 years.[15]

19     If the Court makes the order in favour of an unmarried father who does not already have parental responsibility it must make a separate parental responsibility order.[16]

20     When a residence order is made in favour of someone who is not the parent or guardian of the child then that person will acquire parental responsibility for the duration of the residence order.[17]   Whilst his or her power is limited in respect of issues concerning adoption, that person will otherwise hold parental responsibility jointly with anyone else who has parental responsibility.  Accordingly, if a grandparent, concerned  about his grandchild, wishes to apply for a residence order and, having obtained leave is then successful in the application, he will then not only have the child live with him but also have the power to make important decisions concerning that child.  It is obviously important that anyone who does have a child living with him has such a power.

21     Others who might benefit from this provision include step-parents.  It is possible for a shared residence order to be made.  A step-father, or same sex partner, might apply for a shared residence order jointly with the mother so that he or she can share parental responsibility for the child with the mother.  It is important that the order made is a “shared residence order” rather than simply a residence order to the partner due to the implications if the relationship later breaks down. 

22     It is also possible for shared residence orders to be made where couples do not live together.[18]  This is becoming more common in England at the moment.  Shared residence orders are being made for divorced parents when children are spending time on a roughly equal basis between them, and/or where it is necessary to ensure that one parent is not disadvantaged by the other being given control, or at least the perception of it.[19]

23     In addition to determining the person with whom the child lives and conferring parental responsibility, the order specifically indicates that no one may cause the child to be known by a new surname without the written consent of every person with parental responsibility for the child or with the leave of the Court, and that no person may cause the child to be removed from the Island without the written consent of every person who has parental responsibility for the child or with leave of the Court save that the residential parent may automatically remove the child for a period of less than one month.[20]  Accordingly, if acting for a parent who is to have contact with his child and the residential parent is likely to be difficult about it, it may be appropriate to seek leave to remove the child from the Island during periods of contact.

Contact order

24     A contact order requires the person with whom the child lives, or is to live, to allow the child to visit or to stay with the person named in the order or for that person and the child to have contact with each other.

25     This replaces the old order for access.  It is one of the most common applications sought by fathers in England.  When faced with such an application by an unmarried father it is important to explain, of course, that he may not have parental responsibility and may wish to apply for this too.  In England very few people appear to know that there is a difference in their rights and responsibilities until such a problem arises.

26     In England, case law regards contact as the right of the child, rather than the parent and there is currently strong pressure for contact to take place and for court orders to be enforced.

Prohibited steps order

27     This is a new order which is not immediately comparable with any matrimonial order previously available.  It is an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the Order, shall be taken by any person without the consent of the Court.[21]

28     Although it may appear to be an order simply to be made against the parent, case law in England has determined that it is an order that can be made against any person, although it has to be in connection with some form of parental activity, for example -

(a)     prevention of removal of the child from the   jurisdiction;

(b)     preventing removal from/change of schooling;

(c)     preventing a change of name;

(d)     preventing the child undergoing surgery or receiving a blood transfusion.

Specific issue order

29     Once again, this is an order that is not otherwise instantly referable to an order previously available.  This is one which gives directions for the purpose of determining a specific question which has arisen, or which may arise in connection with any aspect of parental responsibility for a child.  Accordingly, dealing with questions as to the religion in which a child should be brought up, what name a child should have, what school a child should attend, or what medical treatment a child might have, all fall within the ambit of a specific issue order.

Factors considered by the court

30     The Children Law has stipulated that when considering any question (i.e. not simply article 10 orders) with respect to either the upbringing of the child or the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the Court’s paramount consideration.[22]

31     When the Court is considering whether or not to make, vary, or discharge one of the four article 10 orders and it is opposed by a party in the proceedings or when the Court is considering whether to make, vary or discharge a public law order it must take into account -

(a)     the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)     his physical, emotional and educational needs;

(c)     the likely effect on him of any change in his circumstances;

(d)     his age, sex, background and any characteristics of his which the Court considers relevant;

(e)     any harm which he has suffered or is at risk of suffering;

(f)      how capable each of his parents, and any other person in relation to whom the Court considers the question to be relevant, is at meeting his needs;

(g)     the range of powers available to the Court under this Law in the proceedings in question.[23]

32     Article 1(5) makes provision for the “no order principle” indicating that when the Court is considering whether or not to make an order it shall not do so unless it considers that it is better for the child than making no order at all.  The reality of the situation, however, is that once an application has come before the Court it is unlikely that it will be better for the child to leave without an order.  Experience in England would indicate that even if an agreement has been reached it is probably better to incorporate that agreement in an order and make provision for amendment by agreement between the parties where appropriate.

The process

33     When the Court is considering whether or not to make an order it may seek a report on such matters as it directs.[24]  This will be a standard report by a Probation Officer, or Childrens Officer to provide an independent view as to what is in the child’s best interests.

34     A much more significant report is an article 29 report.  This provides that where in any family proceedings in which a question arises with respect to the welfare of any child it appears to the Court that it may be appropriate for a care or supervision order to be made with respect to him, the Court may direct the Minister to undertake an investigation of the child’s circumstances.

35     Indeed, having requested such a report the Court might make an interim care or interim supervision order if satisfied that there are reasonable grounds for believing that the threshold criteria (to be detailed later) are made out.  Accordingly, what started as a simple private law application for contact or residence may have developed into something where the children could be removed from their parents by the Minister.

PUBLIC LAW ORDERS

Emergency protection orders

36     The first, and most dramatic, of the public law orders is the emergency protection order.  This gives the applicant parental responsibility for the child and operates as a direction to anyone who is in a position to do so to comply with a request to produce the child to the applicant.  It also authorises the removal of the child at any time to accommodation provided by or on behalf of the applicant or prevents him from being removed from any hospital or other place in which he was then being accommodated before making the order.

37     The application for the order can in fact be made by any person if the Bailiff is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed to accommodation provided by or on behalf of the Minister or he does not remain in the place in which he is then being accommodated.[25]  The Minister can also apply if he is making enquiries with regard to a child and those enquiries are being frustrated by access to the child being unreasonably refused and there is reasonable cause to believe that access to the child is required as a matter of urgency.

38     Naturally, before the Bailiff actually makes the emergency protection order he must go on to consider whether or not this is in the child’s best interests, the no delay principle, the welfare checklist, and the no order principle.

39     Although the application can be made by any person it is likely that only the Minister will pursue such applications.  Having acquired parental responsibility (and the Minister may not apply for a residence order) action should only be taken to meet that  parental responsibility if it is reasonably required to safeguard or promote the welfare of the child.  Such an order would enable the Minister to procure the removal of the child from a home if he was in immediate danger, or perhaps to keep a newborn baby in hospital when a mother was threatening to discharge herself and her child. 

40     In England, emergency protection orders are generally made on an ex parte basis and, as a consequence, are rare.  Judges are becoming increasingly concerned about the draconian nature of an emergency protection order.  In Re M[26] Munby J indicated that there must be awareness of the extreme gravity of the relief being sought.  He noted the draconian nature of an emergency protection order which summarily removed a child from parents and considered that required exceptional justification and proof of imminent danger.  He said that an emergency protection order (which in England can be made for no longer than eight days, and extended for no more than a further seven) should be made for no longer than is absolutely necessary to protect the child.  Less drastic alternatives must be considered.  Interestingly, the Children Law provides that the emergency protection order may be made for a maximum of 28 days.  No application for discharge of the order shall be heard until 72 hours has expired.[27]  This enables the Children’s office to have much longer to prepare its case than is available to local authorities in England. 

41     The draconian nature of an emergency protection order was also underlined by Commissioner Hamon in the Royal Court in VKS and PAS v Health and Social Services Committee[28] where the committee had obtained an order under article 41 removing a newborn baby from her parents within an hour of the birth. The Court, in allowing the appeal and setting aside the ex parte order made by the Lieutenant Bailiff, referred also to jurisprudence of the European Court of Human Rights. 

Care and supervision orders

42     The primary orders available to the Minister are care and supervision orders.  The impact of each of these two orders is, however, radically different. 

43     A care order gives the Minister parental responsibility and the power to determine the extent to which a parent or guardian may meet his parental responsibility for the child.[29]  It does not terminate a parent’s parental responsibility but gives the Minister effective control.  It will terminate any article 10 order (and consequently if a grandparent had a residence order this will be terminated and the parental responsibility which she acquired simply by virtue of having a residence order will also be terminated.  The unmarried father who had a residence order in his favour will continue to have parental responsibility because the residence order required an independent parental responsibility order to be made in his favour).  Having had a care order made in his favour the Minister then has a duty to receive the child into care and to keep the child in care whilst the order remains in force.  It will go on until the child reaches the age of 18 years unless it is brought to an end sooner.

44     A supervision order requires the supervisor to advise, assist and befriend the supervised child, and to take such steps as are reasonably necessary to give effect to the order.  Article 28 makes provision for directions to be given to the supervised child.  It essentially gives the Minister a watching brief in respect of a child but does not give him parental responsibility.  It can coexist with article 10 orders and the Minister does not have the power, under a supervision order, to remove the child from his parent.  Furthermore, the order is time limited, only lasting for a period of up to one year[30] and can only be extended for a maximum of three years from the date of the original order.[31]  Interestingly, in England, some authorities have asked for the supervision order to be made for a period of three years at the time when the original order was made, and have done so successfully. 

45     Neither the care nor supervision order may be made unless the threshold criteria detailed at article 24(2) are met namely -

(a)     that the child concerned is suffering, or is likely to suffer significant harm; and

(b)     that the harm or likelihood of harm is attributable to -

(i)      the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or

(ii)      the child’s being beyond parental control.

46     The terms detailed in the threshold criteria are further defined at article 24(6) and (7). 

47     If the threshold criteria are met, the Court must then go on to consider the paramountcy principle, the welfare checklist and the no order principle detailed above.  This is a clear two-step process.  If the threshold criteria are not made out, the Court cannot go on to make a care or supervision order.  It is also possible that by the time the case reaches the final hearing the child will have been in foster care for some period.  Accordingly, one might question how it can be said that the child “is suffering” significant harm.  Accordingly, for the purpose of the threshold test in England, the Court considers this as at the date when child protection procedures were commenced (probably the day when the local authority initiated proceedings).  For the purpose of disposal (consideration of the paramountcy principle, the welfare checklist and the no order principle) the Court will consider facts as at the date of the hearing.

48     Consequently, in England, it is not uncommon to find that the threshold criteria are agreed between parents and the local authority.  The argument, however, is with regard to disposal.  The parent might argue that a safe environment has now been created for the child or, perhaps, that since the initiation of the proceedings the parent has undergone some form of therapy or treatment enabling him to parent his child better.

49     Lastly, before making an order the Court must consider the proposed arrangements in relation to contact suggested by the Children’s Service.^[32]

50     Inevitably, interim orders are necessary in the public law arena given the length of time it may take to prepare a case.  However, at the interim stage the Minister will not necessarily have the evidence available to it to establish that the threshold criteria are made out.  Accordingly, the Court may make an interim care or interim supervision order if it is satisfied that there are reasonable grounds to believe that the threshold criteria are met.[33]  The Court will still need to go on to consider the paramountcy principle, the welfare checklist and the no order principle.

51     An interim order may last for a period of eight weeks[34] commencing on the date when the order is first made and then may be renewed for periods of four weeks (or the period of eight weeks beginning with the date when the order was first made if that period ends later).

52     Interestingly, in England and Wales when an application is made for an emergency protection, care or supervision order, the child is a party to the proceedings.  A children’s guardian is appointed for the child and that person appoints a solicitor to represent the child.  That is not something that happens automatically in Jersey.

53     There is, of course, an overlap between the public and private law arena.  Faced with an application for a care order, for instance, it is worth remembering that the Court has the power to make any article 10 order if it considers that the order should be made even though no such application has been made.[35]  This, therefore, might be of benefit to a parent who, although not able to put a case that she can look after the child herself, might be able to ask the Court to make an order in favour of the child’s aunt or grandmother.  The Court will then have to choose whether it is better for the child to be living (whether in the interim or final stage) with a family member rather than under the control of the Minister.

54     Contact with children who are subject to care orders can be an emotive issue.  This is not dealt with under article 10, but under article 27 which provides that the Committee shall allow the child reasonable contact with his parents or anyone in whose favour there was a residence order prior to the care order being made or a person who had care of a child by virtue of an appropriate order.  If not satisfied with the arrangements that the Minister has made applications may be made to the Court.

Financial orders

55     Lastly, it is worthy of note that article 15 empowers the Court to make orders for financial relief with respect to any child in accordance with schedule 1.  This enables an application to be made by parent, guardian, or person with a residence order in their favour requiring either or both parents to -

(i)      make periodical payments for such a term;

(ii)      secure periodical payments for such a term;

(iii)     pay a lump sum;

(iv)     transfer property to which the parent is or the parents are entitled,

as may specified in the order to the applicant for the benefit of the child or to the child himself.

56     The criteria for the Court to take into account are found in schedule 1. 

Conclusion

59     The Children Law offers a new range of tools for practitioners to use in furthering the best interests of their clients and the child.  Experience in England has shown it to be flexible, although amendments have occurred, including recent provision for all unmarried fathers whose names are on their child’s birth certificate to have parental responsibility automatically with the mother.  This article cannot hope to go through all the detail of the new law but does, it is hoped, outline some of the provisions and suggests some of the uses that might be made of the new law’s provisions.

Giles Robinson is a partner with Girlings Family Law Department in Canterbury. He is an experienced lecturer, delivering courses to other solicitors on issues of Family Law.

Return to Contents