From Patria Potestas to Parental Responsibility

Summary

1. INTRODUCTION

Unlike concepts such as patria potestas, parental power or parental rights, the idea of parental responsibility seeks to highlight that children are not a kind of possession to be controlled by their parents, but, rather, people who must be cared for by them. As such, parental responsibility better describes the expectations of contemporary legal systems regarding parental functions and the central role of the best interests of the child. In particular, parental responsibility seems consistent with the idea that parents play a key and fundamental role in the life of the child, but in a way consistent with rights of the child. In the following, I provide a short account of the way in which the idea of parental responsibility, as conceptualised by John Eekelaar, has become central in the legal regulation of the parent-child relationship in Latin America. While most jurisdictions in this region continue to prefer concepts such as patria potestas, parental power or parental authority, both legislation and courts are reshaping these legal concepts in ways closer to the idea of parental responsibility as described by Eekelaar.

2. PARENTAL RESPONSIBILITY, PRIVILEGES, AND RIGHTS

Perhaps the clearest example of recognition of the notion of parental responsibility is the one developed in the jurisdiction of England and Wales. During the nineteenth century, English common law conceived the relationship between parents and children in terms of ‘parental rights’, which gave parents almost complete authority over their children. However, this conception changed substantially, to the point that the rights and best interests of the child began to delimit the legitimate scope of the parental function. As the Law Commission suggested in 1988, to refer to the concept of ‘right’ in the relationship between parent and child is likely to produce confusion. As against third parties, parents clearly have a prior claim to look after, or have contact with, their children, but that claim will always be displaced if the interests of the child indicate the contrary. The parental claim, accordingly, is more accurately described in the concept of parental responsibility.

Influenced by the landmark Gillick case, the Children Act of 1989 defined parental responsibility as all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and his or her property.