Parental responsibility (access and custody)
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In the states of the European Union and elsewhere, parental responsibility refers to the rights and privileges which underpin the relationship between a child and either its parents or those adults who have a significant role in its life. The terminology for this area of law now includes matters dealt with as contact (visitation in the United States) and residence (see Residence in English law) in some states.
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[edit] Parental responsibility in EU law
The European Union has set up machinery for the mutual recognition of Family Law judgments through Council Regulation 2001/2003 which continues the harmonisation of the rules on jurisdiction and on the recognition and enforcement of all judgments on parental responsibility. The intention is to ensure that parental responsibility orders can be recognised and enforced through a uniform procedure. The courts in the Member State where the child is habitually resident have the primary jurisdiction to rule on parental responsibility. The courts in the other Member States shall enforce those judgments unless:
- this infringes public policy in the given Member State — an extremely unlikely eventuality;
- the child has not been given the opportunity to be heard except in cases of genuine urgency (in all cases, the fundamental right of every child to be heard and for his or her views to be given due weight in accordance with their age and maturity, is provided in Article 24 Charter of Fundamental Rights of the European Union which also states that the child's best interest shall be the primary consideration in all cases affecting their interests, whether initiated by public authorities or private institutions);
- the person claiming that the judgment infringes his or her rights of parental responsibility has not been given an opportunity to be heard, or was not allowed a reasonable time to prepare his or her defence (see natural justice); and
- the judgment is irreconcilable with a second subsisting judgment (under certain conditions).
Following a proposal from the Commission in May 2002, a regulation on parental responsibility which was adopted on 27 November 2003 and applies from the 1st March 2005:
- ensures the right of the child to maintain contact with both parents even when the parents live in different Member States by allowing automatic recognition and enforcement of judgments on access rights, and
- seeks to prevent parental child abduction within the Community. The courts of the Member State of the child's residence before abduction always have the jurisdiction. Some parents have abducted children to their own states in the hope of receiving more favourable treatment. The courts of the abducting parent's nationality can only refuse to return the child immediately if this is necessary:
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- either because there is a grave risk that the child would be in danger if he or she returned, or
- if the child has attained a certain age and maturity and does not want to return.
- But the court in the state where the child resided before the abduction takes the final decision as to where the child shall stay, and such decisions must be respected in the state of current residence.
[edit] Parental responsibility in European states
[edit] England and Wales
In English law, under s3(1) Children Act 1989, Parental Responsibility "...means all the rights, duties, powers, responsibilities and authority, which by law a parent of a child has in relation to the child and his property". Under s2(1), both the child's father and mother have Parental Responsibility for the child if they are married to each other at the time of the birth. Under s2(2), where the child's mother and father are not married to each other at the time of the birth, the general rule is that the mother has sole Parental Responsibility for the child unless the child is freed for adoption or is the subject of an Adoption Order in favour of another person. But if a child's birth is registered or re-registered from 1 December 2003 and the unmarried father is named on the birth certificate, this also gives him parental responsibility. Under s4, a father can obtain Parental Responsibility by:
- s4(1)(a) by an Order of the court if the parents cannot agree on the father having parental responsibility.
- s4(1)(b) drawing up a Parental Responsibility Agreement with the mother, which is a specific form that has to be signed by both parents and lodged with the court;
- marrying the mother.
s2(5) provides that more than one person can have parental responsibility for the same child at the same time. S2(7) provides that Parental Responsibility is shared between everyone, but individuals can act alone and without the others in meeting responsibilities to safeguard and protect the child. Parents with Parental Responsibility are entitled to be consulted in educational and medical matters concerning their children. Where a person has PR no-one may: (a) take a child out of the country for more than 30 days without an Order of the Court, or (b) change the surname of the child.
[edit] Scotland
In Scots law, issues relative to parental reponsibilities are dealt with under the Children (Scotland) Act 1995, which provides for the making of 'residence' (custody), 'contact' (access), and 'specific issue' orders. These may be applied for by anyone with an interest in a child, not merely parents ( reference). Under section 1 of the 1995 Act, parental responsibilities are, where practicable and in the best interests of the child, to:
- safeguard and promote the child’s health, development and welfare;
- provide the child with appropriate direction and guidance;
- maintain personal relations and direct contact with the child;
- act as the child’s legal representative.
These responsibilities last until the child is aged 16, with the exception of the responsibility to provide the child with appropriate guidance, which lasts until the child is aged 18. Under section 2 of the 1995 Act those with parental responsibilities are given corelative rights to allow them to fulfil those responsibilities. These rights are:
- to have the child living with him or her or otherwise to regulate the child’s residence;
- to appropriately control, direct or guide the child’s upbringing;
- if the child is not living with him or her, to maintain personal relations and contact with the child on a regular basis;
- to act as the child’s legal representative.
Having PRRs entitles a parent to take key decisions relating to the child, such as where they will live and go to school, and what medical treatment they should receive. In addition, parents have an obligation to provide financial support for their children under the Family Law (Scotland) Act 1985 (c 37) and the Child Support Act 1991 (c 38). In certain circumstances, this obligation continues when the child in question is beyond the age at which his or her parents have parental responsibilities under section 1 of the 1995 Act. The child’s mother, irrespective of whether she is married to the child’s father (s3(1)(a)) and the child’s father, but only if he is “married to the mother at the time of the child’s conception or subsequently” (s 3(1)(b)) have automatic rights (a married father’s PRRs continue after divorce, unless they are specifically removed by a court. Unmarried fathers,step-parents and others must either make a Section 4 Agreement, or apply to the court under section 11 for rights.
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