Parental Responsibility

Summary

John Eekelaar means so much to so many – and on so many levels. As for myself, I cannot sufficiently express the gratitude for his unwavering support over the years: first, for a (too) mature student, then for a colleague when transitioning from one legal system to another and later when allowing me to join the editorship of the International Journal of Law, Policy and the Family (IJLPF). I have benefited immensely from his guidance, both on a personal and on a professional level, and I am certainly not the only one in this, as the contributions in this volume show.

In this contribution, I look at the construct of parental responsibility in the Children Act 1989, and its unfortunate deconstruction by the judiciary. John has published two short but seminal articles on this topic: ‘Do Parents have a Duty to Consult?’ and ‘Rethinking Parental Responsibility’. Despite their brevity, the articles have been very influential, and capture the issues with the clarity of analysis that characterises all of John’s outstanding oeuvre. In both, John – quite rightly – was very critical about the courts’ interpretation of the law on parental responsibility, especially their reliance, post-Children Act 1989, on a supposed common law that may require consultation with, or even consent of, other holders of parental responsibility, in cases of ‘important decisions’ regarding the child. In this contribution, I maintain that John’s criticism was, and is, fully justified, but will suggest what might, arguably, be considered a ‘middle ground’ : a mere duty to inform.

1. THE CONCEPT(S) OF PARENTAL RESPONSIBILITY

The concept of parental responsibility is as obvious as it is significant, as indeed is the associated terminology. Firstly, using the term ‘responsibility’ clearly indicates a paradigm shift: a move away from parental rights, custody of children and power over children, towards responsibility for children. In other words, there is an intended shiftaway from a focus on the position of the parent, towards a more child-focused one. As one German Court of Appeal judge has put it:

I very much prefer parental responsibility as a term.