FAMILY LAW II

WORKSHEET 2

WORKSHEET 2- PARENTAL RIGHTS AND RESPONSIBILITIES

1. Definition:

Durity v Benjamin (1993) TT- this case illustrates the operation of equality of parental rights over the
out of wedlock child provided for by legislation. In this case, the issue was whether the custody of a
female child born out of wedlock should vest in the mother or father of the child. Here the father was
resident in Canada and wanted to take the child out of the jurisdiction. There was evidence that the
paternal grandmother had been looking after the child for various periods and that the father
throughout his residence abroad had kept in regular contact with the child and had maintained her.
Counsel for the mother argued that because the child was born out of wedlock, that the mother was in
law entitled to custody as of right. The court said that there is equality of parental rights as there are no
illegitimate children once paternity is established and that it was the welfare of the child which must be
considered and not what the parents wanted. Custody was granted to the father with reasonable access
to the mother.
2. Joint or Shared duty?
Original Position:
In the early nineteenth century, the law upheld the right of the father to make decisions for his child:
the father knows far better as a rule what is good for his children than a court of justice can (Bowen,
L.J. in Re Agar-Ellis (1883) 24 Ch. D 317, at 338). The father, as the natural guardian of his legitimate
child, could enforce his right of custody in the common law courts by issuing a writ of habeas corpus,
and he would be successful unless the child were in danger of being exposed to cruelty or contamination
by some exhibition of gross profligacy or corruption (R v. Greenhill (1836) 4 Ad and E 624, at 640, per
Lord Denman CJ ).1

Re Agar-Ellis: The parents of a 16 year old were separated =; the father in exercise f his legal right,
took the daughter away from the mother and sent her to boarding school where she was placed under
the care of a clergyman. The court held that in the absence of fault on the fathers part, the Chancery
court had no jurisdiction to interfere with the fathers legal right to the control, custody and education
of the daughter.

R v Greenhill- The courts of the Kings Bench ordered Mrs. Greenhill to hand over her 3 daughters, all
under 6 years to their father, notwithstanding the father was guilty of considerable cruelty to the wife
and children and intended t hand them over to the care of his mistress. When Mrs. Greenhill refused to
comply with the court order, she was committed to the prison for contempt of court.
One of the early nineteenth century attempts to persuade British courts to re-establish an explicit
preference for mothers occurred in 1804. It was not successful. Neither the law courts nor the chancery
courts could be persuaded to accept the argument that children of tender years should never be
separated from their mothers. This was the case of R v De Manneville and De Manneville v De
Manneville. The material facts in these cases were not really in dispute. Although not initiating a
divorce or a legal separation proceeding, Mrs. Margaret De Manneville alleged that her husband was
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such an extremely unpleasant man that she moved out of the family home, taking the couples theneight-month-old daughter with her. Mr. De Manneville then came to her home and took the child back
with him. Mrs. De Manneville applied to the Kings Bench for a writ of habeas corpus to require the
father to release the child to her. Lord Ellenborough denied the writ, holding that a married father is
entitled to custody of his children while he is still married to their mother, even if the children are very
young.3 She then turned to the chancery court for equitable relief. The chancery court, however, also
refused to intervene. Explaining his refusal, Lord Eldon stated that unless a child was in danger of being
harmed, the law is clear that the custody of a child, of whatever age, belongs to the father.2
The exclusive right was eroded over time with the passage of various pieces of legislation the
cumulative effect of which was the juridical and legislative recognition of the shared parental
rights of the mother.
Current Position:
The parental responsibility is now shared. Family Law Act/Guardianship Acts of various jurisdictions
have codified the position and provides that both father and mother have equal responsibility and
authority in respect of their minor children.

Case of Change of Surname

Child born in wedlock- joint consent unless dispensed by the Court:
W (a child), Re, Re B (children), Re A (a child) [2001] Fam 1, [2000] 2 WLR 258:
All three appeals had one issue in common, namely the circumstances in which a child registered at
birth in one surname might have that name changed by deed-poll by one parent against the wishes of
the other parent. *
Re T (Change of Name)- in the case of a divided family, it is always one of the aims of the court to
maintain the childs contact and affection for both parents so far as circumstances permit. But to deprive
a child of her fathers surname is something which is NOT in the best interests of the child because it is
injurious to the link between father and child to suggest that there is some reason why it is desirable
that she should be called by some other name than that of the father.
Re WG the court noted that the mere fact there has been a divorce and that the mother had remained
in custody of the child and has a surname different from her child by her next marriage was NOT
sufficient reason for changing a childs surname.
Best interest considerations:
The courts recognize the importance of maintaining a link with the father UNLESS it ceases to be in the
interest of the child on some ground including the fathers bad character or conduct, making it
undesirable for the father to even have access to the child.
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Dawson v Wearmouth- the courts are in general more likely to agree to a change of surname for
children in the case of unmarried parents. In one case which has been before the House of Lords Dawson v Wearmouth - the mother had been married to Mr Wearmouth and had two children by him.
When she and the child's father divorced the mother and the children retained the surname of
Wearmouth.
Mother subsequently met Mr Dawson, she and the children lived with him and she had a third child by
him. When the third child was about one month old mother and Mr Dawson separated. Mother
registered the third child with the surname of Wearmouth which she and the two other children had
maintained. She knew that Mr Dawson would not like this and in fact Mr Dawson applied to the court
in order that the third child could be known by his surname.
The House of Lords refused. The question, as always, was what was in the child's best interests. In this
case mother, Mr Dawson and the child had not really lived together as a family unit for any length of
time. Mother not unnaturally argued that she and the two other children had one surname and it would
do more for the unity of the family if all the children had the same surname. The court agreed with her.3
A surname which is given to a child at birth is not simply a name plucked out of the air. When parents
are married the child will normally be given the surname of the father thereby demonstrating its
relationships to him. The surname is thus a biological label which tells the world at large that the blood
of the name runs in its veins.

Re Garcia (TT)- the court held that it was in the best interest of the child that he should belong to a
family unit and allowed the mothers application to change the childs name from that of his biological
father to that of her husband.

Re B (Change of surname) [1996] 1 FLR 791, CA

Following her separation from M and her marriage to H, a woman W sought leave to change the names
of her children BB, then aged 16, 14 and 12. The children themselves wished to change: they had a poor
relationship with their father M and used his name only for official purposes; they were generally called
by H's name at school. The judge refused leave and W's appeal failed: the Court of Appeal said it would
not be in BB's interests, whatever their wishes, to sever their remaining links with their father.4

PARENTAL RESPONSIBILITIES AND THE RIGHTS OF THE CHILD

AND THE 4 PS:
The childs welfare is to be treated as the top in the list of items relevant to the matter in question. The
words connote a process whereby when all the relevant factors, relationships, claims, wishes of parents,
risks, choices and other circumstances are taken into account and weighed, the course to be followed
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will be that which is in the most interest of the childs welfare as that term is to be understood. It is the
paramount consideration because it rules upon or determines the course to be followed.
In Re T (Wardship: Medical Treatment) [1997] 1 FLR 502, the Court of Appeal held that it would not be
in a childs best interests to have a lifesaving liver transplant, despite unanimous medical opinion
advocating such treatment. A successful outcome also depended on the childs mothers cooperation, and
it was held that it was not in the childs interests to direct his mother to commit herself to a procedure
that she opposed. This case is illustrative of the difficult decisions facing the courts in childrens cases.
Such cases are decided according to the welfare principle.5
J v C (1970)- The House of Lords in J v. C [1970] AC 668, held that the welfare principle was not
confined to disputes between parents, but applied equally between parents and third parties. The court
held that it was in a Spanish boys best interests to remain in England with his long-term English foster
parents. The words first and paramount were interpreted to mean: more than that the childs welfare
is to be treated as the top item in a list of items relevant to the matter in question they connote a
process whereby when all the relevant facts, relationships, claims and wishes of parents, risks, choices
and other circumstances are taken into account and weighed, the course to be followed will be that
which is most in the interest of the childs welfare as that term has now to be understood. That is the
paramount consideration because it rules on or determines the course to be followed. (per Lord
MacDermott, at 71011).

Re M (1996)- the court did not cite J v C. Although the court acknowledged that the child, a Zulu boy,
aged 6 years, had 2 psychological parents, the childs single mother and the Afrikaner widow with
whom he lived in London, it favoured his return to RSA and held despite the boys protests, that it was
in his interest to live with his mother in RSA placing great emphasis on the childs right to be brought
up in his homeland of natural parents.
The difference between J v C and Re M may arguably be an increased awareness, in the intervening
quarter century, of the importance of a childs cultural heritage. However, an international recognition
of childrens rights has brought into sharper focus potential conflicts between childrens welfare and
certain cultural practices.

Physical care and protection of the Child:

Common law: the parent, originally the father, exclusively had a duty to protect his child and this
included an adult child incapable of caring for himself. If a childs death or injury caused by breach of
this duty of care and protection from harm, the parent could be found guilty as in the case of death of
manslaughter. The extent of the authority and power depends on the age and understanding of the
child:
Traditionally, the legal apparatus sought to protect the parents relationship with his child. In Re AgarEllis it was laid down that:

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When by birth a child is subject to a father, it is for the general interest of the particular infant, that the court
should not, except in very extreme cases, interfere with the decision of the father but leave him the responsibility of
exercising that power which nature has given him by birth of the child.

R v Griffin (1869): An infant, two and a half years old is not capable of appreciating correction, a father
therefore is not justified in correcting it, and if the infant dies owing to such correction, the father is
guilty of manslaughter. Although a slight slap may be lawfully given to an infant by her mother, more
violent treatment of an infant so young by her father would not be justifiable.
R v Walters (1841)- If a woman left her child, a young infant, at a gentlemans door, or other place
where it was likely to be found and taken care of, and the child died, it would be manslaughter only; but
if the child were left in a remote place, where it was not likely to be found, eg, on a barren heath, and the
death of the child ensued, it would be murder.

!R v Senior

(1899)- The intentional failure of a person, who had the necessary means to procure
medical aid for a child in his care or charge, who was, to the knowledge of such person, in a dangerous
state of health, and for whom medical aid and medicine were essential things that reasonably careful
persons would have provided for children in their care, was evidence of wilful neglect within
Prevention of Cruelty to Children Act 1894 s 1 (repealed), and if the jury found that the death of the
child was caused or accelerated by want of medical aid, such person was guilty of manslaughter. It made
no difference that such person believed that to call in medical aid would be wrong, as being contrary to
the teaching of the Bible, or as showing want of faith.
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The Trinidad and Tobago Family Law (Guardianship of Minors, Domicile and Maintenance ) Act 1981
has given effect to the rule, in s(3) that the welfare of the minor is the first and paramount consideration.

The Gillick Decision: Gillick v West-Norfolk and Wisbech Area Health Authority (1985)
The issue here was whether a doctor could give contraceptive advice to a girl under 16 years of age,
without the consent of the parent. The CA took the traditional view and held that until the child
reached the age of majority, that child had no independent capacity to consent to such treatment, and
unless the parent consented to it, then such a course taken by the doctor could very well amount to a
tort against the child. The CA decision was reversed by the HL which held that a child acquired the
capacity to have lawful dealings, including the ability to consent to receiving such medical advice, even
if the child was still within his or her minority provided of course that the child had the requisite
emotional maturity and understanding necessary to enter into the particular transaction in question.

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The case is authority for the proposition that parental rights over a child terminate when the child
achieves maturity, providing that the transaction in question which the court is called upon to uphold is
in the best interest of the child.
In this particular case, the doctors professional decision to provide this contraceptive information must
therefore take priority over the parents refusal for the child to have it. In such a situation, the court will
allow the parental right in relation to the child to be usurped.
The HL in this case acknowledged that the powers which parents had over children existed only in so
far as they, the parents, could perform their responsibilities towards their children. As such, it has been
put forward that the case, in undermining parental control over their children, represents the
destruction of the concept of parental rights which has been replaced with the concept of parental
responsibility.
To maintain a balanced view, however, it has been suggested that Gillick did not erode parental rights,
but that the welfare principle had eroded it long before the case was decided. However, the decision in
Gillick, which in effect is, that a child of sufficient maturity has the right to consent to medical
treatment, can be rationalised on the basis that medical care is a necessary, which at common law, a
child could contract for.
Criticisms of the Gillick decision:
1. The fact that the Gillick decision was not a matter on such a scale as an abortion, it is asked
whether the court really should have intervened. The parents could have easily given the child
guidance on contraceptive treatment and dissuade the child from being sexually active because
in the end, if the child contracted a venereal disease, the burden is cast on the parent, not the
State.
2. In addition, the decision has been said to undermine the intention of Parliament of the UK when
they enacted the Sexual Offences Act which makes it an offence for anyone to have sexual
intercourse with a girl under 16.
3. It is difficult, if not impossible to reconcile Gillick with the existence of legal disabilities which
prevent even the mature child from entering into contracts or validly selling or leasing real
property, from exercising the powers of a trustee or executor, or from making wills. The
relevant question is whether these disabilities should also be relaxed to take account of the
Gillick competent child.
4. It must be remembered that Gillick competent children are not always allowed by the courts to
make their own decisions. Although the mature child has the right, following Gillick, to consent
to medical treatment, conversely, he should also have the right to refuse such treatment. But the
courts nevertheless retain the power to override the childs refusal, again, on the basis that to do
so would be in the best interest of the child.

Reasonable discipline

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A parent or guardian may lawfully correct his minor child in a reasonable manner. This includes
corporal punishment. In Trinidad and Tobago, S (22) of the Children Act provides for the right of a
parent to administer reasonable punishment to a child or young oerson.

Corporal punishment:
a. Common law: the use of physical force with the intention of causing the child physical pain but is not
injury for the purpose of correction and control of the childs behaviour.

R v Hopley:
A schoolmaster, on the second day after a boys return to school, wrote to the parent proposing to beat
him severely to subdue his alleged obstinacy, and on receiving the fathers reply, assenting, beat the boy
for two hours and a half secretly, in the night, and with a thick stick, until he died: Held he was liable to
a charge of manslaughter.
A parent or a schoolmaster, who for this purpose represents the parent and has the parental authority
delegated to him, may for the purpose of correcting what is evil in the child inflict moderate and
reasonable corporal punishment, always, however, with this condition, that it is moderate and
reasonable. If it be administered for the gratification of passion or of rage, or if it be immoderate and
excessive in its nature or degree, or if it be protracted beyond the childs powers of endurance, or with
an instrument unfitted for the purpose and calculated to produce danger to life or limb; in all such cases
the punishment is excessive, the violence is unlawful and if evil consequence to life or limb ensue, then
the person inflicting it is answerable to the law, and if death ensues it will be manslaughter (Cockburn,
CJ).
(3) It is true that the father authorised the chastisement, but he did not, and no law could, authorise an
excessive chastisement (Cockburn CJ).
b. Statutory position: a parent or person with parental responsibility will be criminally liable if he hits
the child sufficiently so as to leave bruise marks and could face up to 5 years in prison.

A v UK [1998] 27 EHRR 611:

The applicant child, A, and his brother placed on child protection register in May 1990 because of
known physical abuse by their mother and subsequently the stepfather. In 1993 A reported to head
teacher found three bruises on As leg and thighs and back of his left calf and 3 linear bruises on his
buttocks consistent with blows administered by the cane. The bruising was consistent with the
application of the use of considerable force. The step-father was charged with assault occasioning actual
bodily harm. The step-father argued that the chastisement was reasonable and necessary since A was a
difficult child.
The judge advised the jury in his summing up that it is a perfectly good defence that the alleged assault
was merely correcting the child by his parents and in this case the childs step-father provided
correction moderate in manner the instrument and quantity of it. The jury, not surprisingly, found the
step-father not guilty of the charge. Thereafter the applicant, through his father lodged a complaint
with the ECHR.
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Held: the UK violated the childs rights under the European Convention on Human Rights and
Fundamental Freedoms by not adequately protecting him from being subjected by his step-father to
treatment and punishment contrary to Art. 3 of the Convention. The Commission concluded that the
State had failed in its positive obligation to provide adequate protection against such harm because the
defence of reasonable chastisement did not provide adequate protection.

Detention as a form of discipline:

Where the detention of the child is for a period or in such circumstances that it is taken out of the realm
of reasonable parental discipline, a parent can be charged with the criminal offence of false imprisonment
or kidnapping.

R v Rahman [1985] 81 Cr App 349:

A Bangladeshi father living in London who had fostered his daughter out and with consent and
assistance of local authority after her mother had returned to Bangladesh later abducted her with the
intent to take her back to Bangladesh. He bundled her into a car screaming for help out the car window
and she was rescued by 2 police officers. The father was charged and convicted of false imprisonment.
Held; where a parent restrained a childs freedom of movement that would only be false imprisonment if
the restraint was unlawful. That unlawfulness was not restricted to cases where the parent acted in
contravention of a court order or against the other parents wishes but included cases where the
detention was for such a period or in such circumstances as to take it out of the realm of reasonable
parental discipline.

Recognition of Cultural and Social differences:

Re K: Local Authority v N and Others [2007] 1 FLR 399
In this case, the court held, inter alia,1. The standard of the hypothetical reasonable parent does not mean that then it cannot simply
ignore social or religious realities.
2. On the contrary the court must always be seen to be as sensitive to cultural and social and
religious circumstances of the particular family and child
3. The court should be slow to find that parents who had just recently or had comparatively
recently arrived from a foreign country particularly where standards and expectation may be
different have fallen short of an acceptable standard of parenting if in truth they have done
nothing wrong by the standards of their own community.

Maintenance:
This duty extends to step-parents who treat a child as a child of the family. A childs right to be
maintained is provided by law. S (13) of the Trinidad and Tobago Family Law (Guardianship of Minors,
Domicile and Maintenance) Act 1981 is an example. Under this Act, the right to maintenance may be
enforced in the Magistrates court or in the High Court, depending on the particular provision being
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invoked. The interpretation section of the Act defines maintenance as including education. S (51) of the
Barbados FLA is another example.
Education:
Every person who has parental responsibility for a child or full time care of the child has a responsibility
to ensure that where the child is of compulsory school age, he or she receives an efficient fulltime
education. The Education Acts of most jurisdictions provide for a compulsory age of school attendance
and the consequences of the failure or neglect of the parent or guardian to ensure compliance. S (77) of
the Trinidad and Tobago Education Act imposes a burden on the parent to ensure the education of the
child. It provides that it shall be the duty of the parent of the child of compulsory school age to cause
him to receive efficient full-time education suitable to his age, ability and aptitude, by regular attendance
at a school.
This is one of the main parental responsibilities. The Education Act has no compulsory age of education
in Jamaica; TT- 6 yrs- 12 yrs old; same for SVG. In terms of compulsory education or school some
jurisdictions have no provisions and limited scope. It is a natural law responsibility some may say.
Persons who fail to send their children to school can be convicted or fined under the legislation.

Jenkins v Howells [1949] 2 KB 218- A pupil had been continuously away from school because her
mother was a chronic invalid and it was necessary for the girl to assist with housework. When the
mother was prosecuted pursuant to the Act, she contended that her daughters absence was the result of
"any unavoidable cause" by reference to the Act. The Divisional Court rejected that contention and held
that "unavoidable cause", like sickness, must be in relation to the child and not the parent.
This was a case where the mother, a widow, was charged with the offence under their Education Act, of
failing to send her daughter to school regularly. The mother said the daughter had to work at home
because she (mother) was suffering from defective eyesight and chronic heart disease and had been
forbidden by her doctor to perform household duties. She had been warned twice before. HELD- that
was not an unavoidable cause within the meaning of the Act.

Islington LBC v D [2011] EWHC 990:

The child had problems but it was not an unavoidable cause.

Legal excuse for non-compliance at schoolIncludes a child who has an infectious disease, illness and SVG, similar to the UK, distance from school
and inadequate transport arrangements.
Choice of school: there is no statutory provision for parental choice of school except in the case of
Jamaica where the Education Act provides that the wishes of the parent should be taken into account.
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Religious Education and Upbringing- First Recognition of Childrens Rights:

The common law: a parents right:
A parent or person with parental responsibility has the right to determine the childs religious
education, and conversely, none at all.

The nature of this right:

There is no legal obligation on parents to raise their child in a particular religion or indeed in any
religion. They have complete discretion to raise them as agnostics or in any religion of their choice.

Re Carroll [1931] 1 KB 317, @ p. 336: per. Scrutton LJ- It is, I hope, unnecessary to say that the
court is perfectly impartial in matters of religion for the reason that it has no evidence, no knowledge,
no views as to the respective merits of religious views of various denominations.

The Courts approach and Judicial Guidelines:

The courts are generally reluctant to change the settled religion of a child. The courts also do not
discriminate between the comparative worth of different religions.

Re R (Residence: religion) [1993] 2 FLR 163, Times 3/11/92, CA

F was a member of the Exclusive Brethren and M was dead. The sect isolated F for some misbehaviour
and subsequently expelled him; his son B10 remained with an aunt A who belonged to the sect and
(because of the sect's rules) was not allowed any communication with his father. The judge made a
residence order in F's favour, but with visits to A subject to her undertaking not to discuss the Brethren
with B10. A's appeal to be released from her undertaking (which she had scrupulously observed) was
dismissed.
The traditional statement on wishes and feelings is that they carry greater weight the older a child is. In
Re S (Minors) (Access; Religious Upbringing) [1992] 2 FLR 313, Butler-Sloss LJ said of children
who were 13 and 11: "Nobody should dictate to children of this age, because one is dealing with their
emotions, their lives and they are not packages to be moved around. They are people entitled to be
treated with respect."

Religious Preference:
Hoffmann v Austria: [1994] EHRR 293

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This was a case involving a Jehovahs Witness mother and Roman Catholic father. The European Court,
overruling the decision of the Austrian Supreme Court, granted custody to the father. The court decided
by a narrow majority of 5-4, that it was in the childs best interest for the father to be awarded custody
of the children.
In arriving at its decision, the court took into account:

The religious conviction of the JW mother which they viewed as the hazards of the mothers
total rejection of blood transfusions not only for herself but for her children
The potential negative effect of membership in the religious community of the JW
That the mother had unilaterally changed the childrens religion from RC to JW and weighed
that against the possible psychological stress to the children of transferring them into the care
of the father.

Risk to the Child:

i. Psychological
The court will intervene where social practices attached to a sect or religion are considered positively
harmful to the child so as to avoid brain washing or the religious beliefs puts the child at physical risk or
endangers the life of the child:

Re R (A Minor) (Residence: Religion)- it is no part of the courts function to comment on the tenets,
doctrines or rules of any particular section of society, provided that these rules are legally and socially
acceptable.

Re T (Minors) (Custody: Religious Upbringing) [1975] 2 FLR 239 CA

F and M separated (still living in the same house), and when M joined the Jehovah's Witnesses, F
sought custody of their three younger daughters. The judge awarded care and control to F, on the
grounds that if given to M they would be excluded from ordinary social life. The Court of Appeal said
the judge had not given enough weight to the satisfactory way W was currently raising the girls. Her
beliefs were not immoral or socially obnoxious, and a creed that forbade birthday parties and other
frivolity was not inherently wrong. They therefore awarded custody to M, but with generous access to
F (including birthdays and Christmas), and subject to a condition that M would permit blood
transfusions should they become necessary.

ii. Physical
Re S (A Minor) (Medical Treatment) [1993] 1 FLR 376:
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The parents were dedicated Jehovahs Witnesses of a 4 yr. old child diagnosed with T cell leukemia at
high risk of death, had instructed the veto of blood transfusions. Without the medical intervention
proposed, the medical opinion was that there was no prospect of cure. With medical intervention, which
included blood transfusions cure rates up to 50% and if the child was cured his quality of life would be
reasonably good.
Thorpe LJ granted order for medical treatment, including the blood transfusion and while impressed
with the sincerity of the parents faith, he was not prepared to allow religious conviction to deny the
child a 50% chance of survival and condemn him to an early and inevitable death.

Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386:

A 15 year old Jehovah's Witness refused blood products. In this case the court found the child was not
Gillick competent because he had not been informed by his doctors of the horrendous manner of his
death and could therefore not have a full understanding within the meaning of Gillick.7
Also refer to8.

Re O (A Minor) (Medical Treatment) [1993] 2 FLR 149:

A child O needed medical treatment including a blood transfusion, but the parents (who were Jehovah's
Witnesses) refused to consent. The family proceedings court, in the parents' absence, determined that O
was "likely to suffer significant harm" and made an Emergency Protection Order. The local authority
then sought a care order and the case was transferred to the High Court. Exercising the inherent
jurisdiction of the court, the judge ordered that O be given appropriate treatment (including blood
transfusions) whenever a medical need arose. Obiter, he said the inherent jurisdiction was the only
appropriate framework in which to consider such a case, because the parents should normally be granted
an inter partes hearing if their religious convictions were to be overridden.9

The court overruled the parents objections, devout JWs and ordered blood transfusions to be
administered to a premature baby who suffered respiratory distress syndrome and who had been treated
without success with alternatives to blood products.

Medical Treatment: The wishes of the child and the role of the Court:
The issue under this specific responsibility overlaps with the issue of religious freedom/choice to the
extent that the medical treatment or failure to provide appropriate medical treatment is based on
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religious beliefs. The issue of medical treatment addresses a wider issue of the right of a parent to
control or direct and consent to child medical treatment, the right of the child to be involved and to
decide irrespective of the parents view and indeed without their consent and its direct co-relation with
the childs level of development as enunciated in the Gillick case; and finally but mist significantly the
overriding authority of the Court in its delegated role of parens patraie, the supreme parent to ultimately
in the case of conflict and disagreement to override these conflicting positions, whether supported by
medical positions to make the decide the matter in the best interest of the child.
Parental Role and authority:
Generally parents assume that responsibility and provide consent to any proposed medical treatment.
This responsibility or authority must be viewed in the context of the parents; liability or wilful neglect
charge which includes and imposes a minimum standard of medical care on any parent who has a child
in his custody. See R v Senior where parents were convicted of manslaughter arising out of their gross
negligence for the welfare of their child. In that case the parents for religious reasons failed to summon
aid for his child who was dangerously ill and who subsequently died of pneumonia and diarrhea.

Best interest considerations and the role of the court as Parens Patraie:
Re B (A Minor) (Wardship: Sterilisation) [1988] AC 199:
The Court has jurisdiction to authorise the sterilisation of a ward of court as a last resort; such consent
cannot be given by the natural parents or a local authority having parental rights. B was a girl aged 17
and mentally handicapped. She was becoming sexually aware. The council in whose care she had been
placed applied to have her made a ward of court so that leave could be given for a sterilisation operation
since B could not understand that intercourse caused childbirth, or the principles of contraception, could
not cope with normal childbirth and could not function as a mother. Leave was given by the judge, and
the official solicitor's appeal was dismissed.

Held, dismissing the appeal, that although the natural parents and the council had no such power the
Court had jurisdiction over a ward of court to sanction the operation as a last resort, and in the
circumstances, such sanction should be given.

Re B (Wardship : Abortion) [1991] 2 FLR 426:

It was in the best interests of a 12 year old ward to have her pregnancy terminated, as the continuation
of the pregnancy carried greater risks to her mental and physical well-being than abortion. A local
authority applied for leave to have the pregnancy of a 12-year-old girl terminated for health reasons and
was supported by the girl, the putative father and the grandparents, with whom the girl lived, but was
opposed by the girl's mother. Experts for the local authority advised the termination as the risks
involved in the pregnancy continuing far outweighed those of termination. The mother's experts took
the opposite view.
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Held, that it was in the ward's best interests for her pregnancy to be terminated, as the continuation of
the pregnancy involved greater risks to her mental and physical health than having an abortion.

Re A (2001):
It would not be in the best interests of A, who lacked capacity to make the decision, to be sterilised,
while the current level of supervision continued; best interests are not limited to best medical interests
but encompass medical, emotional and all other welfare issues.

Social/ Non therapeutic Reason:

Re D (Sterilisation) [1976] Fam 185: (compare with Re B)
The psychiatrist treating the minor child invoked ward-ship proceedings in an attempt to prevent the
sterilization of the child who suffered from Sotos syndrome. The symptoms of this illness included
emotional instability, aggressive tendencies, accelerated growth during infancy and impairment of
mental function. The girls widowed mother supported by her pediatrician and gynecologist fearful that
she might become pregnant proposed her sterilization and the gynecologist was prepared to perform the
surgery.
The court declined to make an order of sterilization and noted that:

In carrying out non-therapeutic invasive surgery the court should be slow to take any step
which might infringe the rights of those unable to speak for themselves;
Undergoing the operation had to be demonstrated that it was in the best interest of the child
and that it had failed to be established;
On the facts the proposed operation involved the deprivation of a womans right to reproduce
and it was premature
The court was concerned that the girls own view might be on attaining majority and
discovering what had happened.

Re T (A Minor) (Wardship: Medical Treatment) 1997:

T was born with a life threatening liver defect, which required a liver transplant if the child was to live.
The mother, M, refused to consent to the operation as she considered it was in the child's best interests
not to suffer stressful and painful invasive surgery. The judge at first instance considered medical
evidence that the chances of success were good and held that M's decision was unreasonable and it was
in the child's best interests for the operation to go ahead. M appealed.
Held, allowing the appeal, that a child's welfare was always the paramount consideration of a court
exercising its inherent jurisdiction and, although the judge was correct in considering expert medical
evidence, he should also have taken broader non-medical factors into consideration when assessing the
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reasonableness of M's decision. M was a health care professional with knowledge of the effects of
surgery on children and the after care required. The judge should have considered whether it was in the
child's best interests that the mother should be forced to take on the commitment of caring for the child
after surgery with which she did not agree. The judge's decision was therefore flawed as the paramount
consideration of the court was not the reasonableness of M's decision, but the consideration of the child's
best interests, taking into account all factors, not just medical considerations. It was in T's best interests
that decisions as to his future treatment be left to his parents.

Re R (A Minor) (Wardship: Medical Treatment) [1992] Fam. 11:

A court held that a 15 year old girl lacked insight into her acute psychiatric condition, preventing her
fully understanding the need for medication. She was therefore held not to be Gillick competent. This
may initially appear consistent with the Gillick principle, because she was held to lack capacity.
However, the court went on to state that even if she was Gillick competent, she had no authority to
refuse treatment.10

Contact/Access:
This is viewed as the basic right of the child, not the parent:

M v M (Child Access) [1973] 2 All ER 81Access to both parents is a fundamental right of every child, but sometimes, where the interests of the
child require it, it may be necessary to forbid access by one parent; these principles apply equally to
adopted children. H and W married in 1956. A was born in 1965 and adopted by H and W in October
1966. In April 1969 an order was made placing A under the care of the local authority. In April 1970 W
left H and A. In June 1970 W complained to the justices of H's cruelty and asked for custody of A. The
justices found that cruelty by H was not proved, and they awarded custody of A to H, with "reasonable
access" to W. W visited A at first twice a week, later once a week, but the evidence showed that from
soon afterwards access was never successful. This was because both H and W resented the fact that the
other was having anything to do with the child. In April 1971 W became pregnant and H refused to
allow access to continue although he was himself living in adultery. In May 1972 W applied for a
definition of "reasonable access" and H applied for all access by W to be ended. The justices heard
evidence that A was found by his schoolteacher to be disturbed after access by W, and that since access
had ceased his general development had greatly improved. They concluded that "it was in [A]'s best
interests that access should be discontinued completely at the present time." W appealed, contending
that every parent had a right to some access to her child unless she was a criminal or likely to be cruel
to her child (which was admittedly not the case).

10

[Link]

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Held, dismissing the appeal, that (1) access is a right of the child, not of the parent; (2) it is a harsh step
to deprive a child of all access to one parent; (3) but the interests of the child are paramount, and as the
justices had applied this test correctly, and there was evidence before them justifying their conclusion,
their decision would not be disturbed, especially as A was still young and a different order could be
made in the future if appropriate.
Resumption of Contact:

Re H (Minors) (Access)[1992] 1 FLR 148 CA

When F and M separated their children CC remained with M, who terminated F's access after six
months. Some three years later F applied for access, but the judge refused on the grounds that renewal
of contact after so long would upset CC. The Court of Appeal allowed F's appeal, saying there was no
cogent reason to deny CC access to their natural father: any minor upsets would surely be outweighed
by the long-term advantages.

Denial of Contact:

Re B (Minors: Access) [1992] 1 FLR 140

When M and F divorced their child C went to M. From time to time F exhibited strange behaviour such
as trying to set light to the grass in a field, or walking down the street with a plastic bag on his head,
though there was never any violence towards M or C. F appealed successfully against the judge's refusal
to allow him supervised access to C: his bizarre behaviour did not displace the assumption that a child
should normally have continuing access to both parents.

RE KD (A Minor) (Access Principles)

When determining in wardship proceedings whether a natural parent's access to the child should be
terminated and the child placed for adoption, the welfare of the child is paramount. There is no
inconsistency between that rule and the rule under the European Convention for the Protection of
Human Rights and Fundamental Freedoms 1950 Art.8 , in accordance with which the court must decide
whether and to what extent the child's health or morals require protection from the parent and whether
and to what extent the family life of parent and child has been supplanted by some other relationship
which has become the essential family life for the child. M, the mother, aged 16, gave birth to a child, K.
The local authority found a home for her with Mr and Mrs X. M found K too much of a tie, left K, now
aged nine months with Mr and Mrs X and acquiesced in the search for long-term foster parents. K was
moved to long-term foster parents who wished to adopt him. Over a period of three years he saw little
of his natural mother. The judge made an order that M cease to see K.
Held, that public authorities exercised a supervisory role and interfere to rescue a child when its
parental ties were broken by abuse or separation. The welfare of the child was paramount and there was
no inconsistency between the English rule and the European Convention. In terms of the Convention,
the court must decide whether and to what extent the child's health or morals required protection from
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the parent and whether and to what extent the family life of parent and child has been supplanted by
some other relationship which has become the essential family life for the child.

Indirect Access: an Alternative:

Re M (A Minor) (Contact Conditions) [1994] 1 FLR 272

F was in prison, and had allegedly been violent towards M. The magistrates made an order for postal
contact with their child C, requiring M to read F's letters to C and to send F quarterly reports on C's
progress. Allowing M's appeal, the Court said M could be ordered not to impede contact, but could not
be required to facilitate it nor to have contact with F herself. A postal contact order was quite
acceptable, but the additional conditions were ultra vires.

Legal Representation:
A parent has the right to act on behalf of a child in legal proceedings as the childs friend or guardian ad
litem unless it is established that it is not in the childs interest.

Re Birchall, Wilson v Birchall (1880) 16 Ch D 41 CA:

An order having been made approving on behalf of infant defendants a compromise which was objected
to by their guardian and opposed by their counsel: Held the court had no jurisdiction to enforce a
compromise against infants against the opinion of their advisers, and the order must be discharged.
The court cannot make a compromise of an action binding on infant parties without the consent of their
legal advisers.
The court can approve of a compromise on behalf of infants, but it cannot force one upon them against
the opinion of their advisers. The practice has been ... to require not only that the compromise should be
assented to by the next friend or guardian of the infant, but that his solicitor should make an affidavit
that he believes the compromise to be beneficial to the infant and that his counsel should give an opinion
that he considers it to be so (Jessel, MR)

Burial of a child:
The parent of a child has both a right and responsibility to bury their deceased child.

Clark v London General Omnibus Co. Ltd [1906] 2 KB 648 CA:

The parent of an infant child who dies where the parent has the means to do so, has a responsibility to
arrange and pay for the burial.
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DIVORCE AND PARENTAL RIGHTS AND RESPONSIBILITIES

Between decree nisi and decree absolute:
Arrangements for the children- the best in the circumstances requirement:

Sebastian v Sebastian JM 1993 CA 25:

THE POSITION OF THE UNMARRIED FATHER:

Other than rights of succession and obligations of financial support, the father of a child born out of
wedlock does not possess the same rights and responsibilities as a father of a child born in wedlock
except in the limited cases of Trinidad and Tobago where legislation has conferred such rights which
are subject to paternity being established.

Re SM (A Minor) (Natural Father Access) [1991] 2 FLR 333:

M and F (unmarried and not cohabiting) had a child C; F had monthly access until M married and
terminated it. F obtained an access order and M appealed. Her appeal succeeded: the justices had not
taken account of the very strong reasons for denying access in this particular case, such as the
disruption to a now stable family unit, the absence of an real bond between C (now 2) and F, and the
absence of any specific benefits to C from the continued contact.

As a general rule, to acquire these rights the father must obtain:

1. Agreement with the mother, or
2. An order of the court, or
3. Appointment as guardian on mothers death:

RE P (Adoption) (Natural Father's Rights)

Where an unmarried father did not know of the existence of his child, who was the subject of an
adoption application, and where it would be detrimental to the child were the father made aware of the
child's existence, it would not be practicable to ascertain his wishes for inclusion in the Sch.2 report. By
the time of P's birth, the relationship between M and F had long since broken down. F had not married
M and was unaware of P's existence. M placed P with the local authority for adoption shortly after the
birth. P's carers applied for adoption. The local authority compiling the report for the court pursuant to
the Adoption Rules 1984 Sch.2 were required to set out the views of each natural parent in relation to
the proposed adoption, so far as was practicable. Directions were sought as to whether it was practicable
to discover F's views.
Held, that (1) although the Adoption Act 1976 defined a parent as a parent with parental responsibility,
it was clear that the reference to each natural parent in r.4(4) of the Rules included a reference to the
unmarried father; (2) when considering whether a course of action was "practicable", it was permissible
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to look at the outcome. If F's becoming aware of P's existence would be detrimental to P, the court
would hold that it was not practicable to ascertain his views, Owen v Crown House Engineering [1973]
3 All E.R. 618 applied, and (3) F knew of the existence of P's brother, and if, as was likely, contact
between F and P's brother continued, F would become aware of P's existence sooner or later. It was in
P's interests to face up to the matter now, and the court directed the necessary information to be
ascertained and placed in the Sch.2 report.

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