Summary
Summary Essay Memory Frameworks
- Module
- LL221 (LL221)
- Institution
- London School Of Economics (LSE)
Essay Memory Frameworks
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PARENTAL RESPONSIBILITY FRAMEWORKDEFINITION ALTERNATIVE FAMILIES EXERCISING PR
S3(1) CA = Rights, duties, powers, responsibilities and authority Lesbian co-parenting + Known Sperm Donor Usually; unilateral action - s2(7) CA 1989; preserve equal status
Shift from rights to responsibilities; became badge of status (Gilmore) Regular involvement of donor de-stabilize child’s primary care-giving unit But apparent freedom of each to act alone is not unfettered (Re C)
Exist for benefit of child, justified insofar enable parent to perform (Smith) Does not interfere with daily decision making of resident parent (Re P
duties towards child and others children in fam (Gillick) Re D – Creative approach, grant PR but strip PR of meaningful practical (A Minor) 1994)
Broad Concept in Act (T v T) effect, made for symbolic reasons Duty to consult for small group for important decisions
Most important rights include bringing up child, having contact, CP: TJ v CV – PRO is inappropriate Education (Re G), Changing Surnames (Re C 1997), Circumcision (Re
protecting and maintaining, discipline etc. (Lowe and Douglas) INADEQUACY OF LANGUAGE J), Immunization (Re C 2003)
A necessary and sufficient condition for very few rights (Eekelaar; PR MA v RS – Acknowledged with parenting role, albeit in secondary capacity – CP: (Eekelaar) Parent should not have duty to consult, (Holman in Re
and PS of limited use as independent, segregated concepts) Primary and Secondary Parenting C) Causes chaos if all retained rights to independent action
Led to fragmentation of parenthood (Smart and Neale) CP: A v B and C (Thorpe) Factual variation means guiding principle is CCP: (Textbook) PR best understood as legitimation of practical
But also, proliferation, degradation and shift in reasons given to PR paramountcy principle. Primary and Secondary Care. (CCP: (Textbook) Gives actions, inactive-involved parents cannot effectively make changes
(Reece) insufficient respect to the nuclear family; Too fitting with law’s general pro- CP: Uncertainty about what amt to consultation; Provision of info /
father approach) Reasonable notice? (Gilmore)
HOW OBTAINED JB v KS: ‘Donor is belittling and disrespectful to all concerned’ Resolve disputes via SIO or PSO, under s8 of CA 1989
AUTOMATICALLY = (Diduck) Doubtful that finding better labels would resolve challenge If CA 1989 cannot remedy, invoke inherent jurisdiction of courts
Gestational Mother (s2(1) CA) (Leanne Smith) Proposed Alternatives – Removing Parental Status from All
Married Fathers and Married / CP Second Female Parents (s2(1) CA) Known Donor (+ Protect Les Fam / - Reinform Dyadic Norm) / Equal Status LIMITATIONS TO EXERCISE OF PR
→ Married at time of child’s birth; May be interpreted in acc with s1(4) for Multiple Parents, Compromise by giving subsidiary role for known donors Gilick Competent Child – sufficient understanding; parents lose
of FLRA to include any time between conception and birth exclusive decision-making powers wrt care
TERMINATED → Parental Order or Adoption UNMARRIED FATHERS not registered or enter PR agreement State – retain authority to override unanimous wishes if intervention
Need to get a PRO, expense and inconvenient, and PR remain subject to necessary for health & welfare
ACQUIRE VIA CA PROVISIONS = termination by court Court retains overriding control where jurisdiction has been invoked,
Unmarried fathers and unmarried / not CP second female partners (s4 CP: Reality following Birth Registration Reforms seems any continuing usually by local authority
& 4ZA CA), discrimination more symbolic than real Court will employ PARAMOUNTCY PRINCIPLE
Registered, Agreement between Father and Mother made in (Re T (A Minor) 1997) Start & end point is judge’s own independent
prescribed for, Court orders PR (PRO) Arg for Reform: Public policy args for recognizing wider range of alt fam r/s, assessment, not engaged to review decision, but free to override
PRO often granted (Re M) despite abusive behavior towards child (Re growing influence of HR discourse (Art 18 emphasise impt of equality (Re A (Children) 2001): Strike a balance and do best for twins
RH). But takes into account commitment (Applying itself does not show between child’s parents (Lowe)), Eradicate legal distc between legit and illegit CP: Great deference shown to medical authorities (Huxton and
sufficient commitment Re S) attachment and motivation for application children, Right to know father (Barton), Anxieties that father’s rights Forbes), Parent’s view cautiously approached due to lack of obj (An
(Re H) as well as relevance of enforceability (Re C). subordinated to mother’s (Carol Smart) NHS Trust v MB), Preference of obj of science (NHS Hosp Trust)
PRO for Status / Symbolic Reasons(Re C – ‘potential value’ to
children), even if ‘strip it of practical effect’ (Re D) Arg against Equal Status (Wallbank thinks BR proposal ill conceived; TERMINATING PR
CP: (Reece) Move away from parental authority too interventionist for mother): Fears of feckless, irresponsible, dangerous Mothers, Married Father, Second Female Parents
CP: Obscene pedophilic (Re S (A Minor)), feels misuse can be (Collier), Distressing to mother and impragmatic amount of litigation (Law Restrictive circumstances under s42 HFEA; Parenthood is lifelong
controlled by s8 order? Com), Mother tempted to conceal identity and sense of insecurity, Marginalise commitment that cannot be surrendered to state
PRO refused where devoid of practical meaning or effect (M v M; concern for mother’s autonomy and welfare of child (Deech) Re B (A Minor) – Child’s father sought adoption order w sole purpose
mental impariemtn, Re G; parents opposed to contact) Qn not about too few rights but too few responsibilities of perm excluding mother from child’s life; Controversial: Lord Nicholls
Step-parents (s4A CA), Guardians (s5(6) CA), State (s33(3)) McMichael v UK – Legitimate aim to withhold automatic PR from unmarried allowed adoption order to stand, making the child legally motherless;
TERMINATED → By court (s4 (2A-4 CA), Need Good Grounds (Re D father, not discriminatory Flexibility may recognize reality that there are absent uninterested
[2014]) CP: (Bainham) Negative stereotype unobjective, (Pickford) UNdermiens parents who do not have r/s w children
rather than promote father’s involvement
Unmarried Fathers, Second Female Parents under s43 HFEA
REFORM: May be terminated on application to court by another holder of PR or,
2002: Enable unmarried father acquire PR by registration; 2009: Registration with leave, by child
provide effect mechanism for identifying meritorious fathers w continuing r/s w PR cannot be terminated because relevant child arrangement order
child’s mum still in force – Example of cessation of PR (for a father who wanted SIO
CP: (Collier and Sheldon) Image of ‘whims of selfish, hostile mothers’ (Reece) for progress reports) is Re W [2013] (father convicted for sexual off
PR detached from parental decision making, (McCandles) Naively optimistic against daughters)
that PR will promote active parenting (Drakeford)
, SECTION 8 ORDERS
WHO CAN ORDER DISPLACING PRESUMPTIONS RELOCATION DISPUTES
CAN: ENTITLED – s10(4), s10(5), s10(5A)-(5C) Serious risk factors displace continuing contact presumption (Re R per INTL DISPUTES - Removal from UK without consent of everyone with PR or
CAN: REQUIRES LEAVE AND OBTAINS IT– s10(9) Butler-Sloss) court’s permission will be child’s abduction.
- Open door policy, any person; no test per se, factors Identified by Thorpe in Re L: Sexual and emotional abuse, self-abuse of K v K (Relocation) 2011 – Only authentic principle = Paramountcy principle.
exhaustive (Re B (A Child)); no need welfare principle either drugs or alcohol, failure to maintain sexual boundaries appropriate Effect of Payne guidance relevant but must not be overstated
PROHIBITED – Local Authority to development of the child, mental illness / personality disorder Payne Factors: (Mother) Genuine motivation, Realistic + Practical, Impact
RESTRICTED – No conditions to be imposed; Can be fixed or Controversial Factor: Implacable hostility of the resident carer or on her, (Father) Genuine motivation, Extent of detriment to him / child’s
indefinite period; Stop vexatious litigation (Re Y (Child Order)) ‘intransigent’ mother (Re D) vs self-interested mother (Rhoades). welfare, Offset by child r/s with maternal side, (New Family / Stepparent)
Does not deny access to court, only partial restriction, merely stop Hostility not justification for refusing contact (Re A 2013), but where Impact; Importance of emotional and psychological wellbeing of primary
being served to parent, thus does not infringe Art 6 ECHR clear mother intends to disobey, court will still not abdicate carer
responsibility. Order will still be made if in child’s interest (Re W (A CP: (Hayes) More attention on proposals of primary carer; (Herring and
Judge can meet child but not gather evidence (Re KP (Abduction)) Minor)). May direct to counselling. Not made in extreme, genuine Taylor) Welfare principle tilt scales heavily in favour of relocating parent
Child’s views are relevant (s1(3)(a) but not determinative (Re M), anxiety inimical to child’s interests (‘Phobic disorder’ in Re L where Approach of K v K reinforced in Re F (CA): Cannot have select or partial
Weight to children’s wishes given according to age (May & Smart) father stabbed wife). citation from Payne; CP: (George) Risks – Judges not specialists in intl
Re C (Contact: No Order for Contact) [2000] – terrified 4 YO. Kaganas says contact disputes constructed by courts as caused by family law, too simple, not universal – unclear where there is no one clear
Buchanan et al says children feel views not taken into acct. irrationality of dysfunctional parents; blame parties who do not make primary carer
contact work and seek to change them; albeit coercive. Re C (International Relocation) [2015] – Holistic balancing exercise; with
PRESUMPTIONS TOWARDS assistance by welfare checklist, Not a linear exercise
Mother – No more gendered upheld compared to past (Re A (A (Fortin) Ingredients of successful contact: Continuous; Unbroken contact
Minor)), In the past the ‘tender years doctrine’ (Glynn) throughout childhood; Foundations laid pre-separation Reality: George, 2015: Research – only real variation in approaches was rgd
Father: (Bailey-Harris) Rare that benefits be questioned, (Gilmore) (Smart & May) Contact & Residence Disputes interwoven w complex shared care. Uncertainty about parenting norms and impt of father E.g. WRT
Evidence suggesting children of separated parents socially and ethical & emotional conflicts – should be acknowledged. effect on non-moving parent: Strong father-child bond → either refuse
educationally disadvantage is controversial; (Smart and Neale) relocation because existing r/s impt OR allow relocation as r/s can survive
Research: Fathers tend to be one step removed from children, r/s SHARED RESIDENCE ORDERS the distance. WRT effect of refusal on applicant: Impact a major
sustained by r/s with Mother Discourse of shared parenting as part of civilized divorce(Krieken); but consideration in many cases, described as ‘devastated’ VS some judges
WRT Both Parents: New Father Rhetoric (Moloney) is disproportionate presumption not in legislation consider devastation = hyperbole
and unfair, devalue mothering role (Boyd); Romanticised vision of Shared residence may reduce conflict, if one parent using residence as
children as priceless emotional assets (Beck) weapon (D v D) INTERNAL DISPUTES – Re C [2015] clarified that there is no difference in
Non Parents: No presumption, but preserve existing relationship (Re R Good relationship between parent not pre-requisite (Re R (Children)) basic approach between external or internal relocation, focus on welfare of
- PRO not made but Contact Order for mistaken biological dad) Absolute equality not required (Re K (A Child)) child. Followed Re L which asks to view facts in welfare terms. Disapplied
Status Quo – Live with grandmother, anchor stability, in acc with Geographical proximity not required (Re F (Children)) (Alternative: Give Re F [2010] which says the circumstances must be exceptional
welfare checklist (Re B (A Child)) residence to mum but generous contact to father?) (considerable distance) before the welfare test should be applied
Sexual Orientation Irrelevant (Da Silva Mouta v Portugal) Justified for symbolic / psychological reasons, even in absence of reality Re R [2016] – Removal of child internally, F sought to characterize as
Religion & Race – Can be factored in (Ismailova v Russia); Reference (Re A (Child)); reduce stake and win-lose mentality internal abduction, premised on no more diff between intl and ext relocation
to general community standards but no bias against minority groups ALTERNATIVE: (Boyd) Primary Carer Presumption → Look at patterns after Re C. Appeal dismissed, welfare is governing principle, no presumption
(Re G) of care of return.
Natural Parents – Not grandparents, too far apart in generation (Re B
[2013]), CP: Psychological parents important (Fortin); Wrong to have SPECIFIC ISSUE ORDER TERMINATING S8 ORDERS
or talk about such presumption, but strong preference for biological Positive Order Orders can be made for a specified period or until further order
parenting (Re G per Hale) → But this was clarified in Re B UKSC 2009; PROHIBITED STEPS ORDER Most s8 orders cannot be made beyond child’s 16 th birthday unless case is
Welfare principle should be pure and untouched by assumptions of sig Negative Order exceptional s9(6). Restriction disapplied specifically in relation to child
of biological parenthood Requirement: Engage some aspect of PR (Re J (SIO: Leave to Apply)) arrangements orders.
Domestic Violence – Paramountcy principle applies. However, s1(2A) [1995] → Incl changing surname (Dawson), Prevent removal of child
of CA: Presumption of both parent contact holds unless put child at risk from juris (Re K), Medical Treatment (Re HG), Choice of School 9(Re MANAGING CONTACT DISPUTES
of harm; DV not an automatic bar to contact but impt factor for G), Publicisation of Info Abt Child (1997) Counselling or therapy may be the better way; blunt tool of ordering will not
balancing exercise (Re L (A Child)); CP: Sturge and Glaser Report Cannot be used to oust someone from family home address underlying cause; Re L (A Child) (Dv) [2001] per Thorpe; Limited is
argues for presumption against – harm includes witnessing harm Application determined based on child’s welfare capacity of FJS to produce good outcome in disputed aeas of personal r/s.
caused to another; CCP: Practice Direction 2008 – Must consider Mandatory (excl DV cases) mediation information and assessment
effects, motivations for seeking orders, likely behavior, capacity and meetings.
attitude to past conduct; CCCP: Yet, still routinely awarded (Re A
(Suspended Residence Order) [2010])
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