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The Fragmentation of Parental Rights

Published online by Cambridge University Press:  16 January 2009

Susan Maidment
Susan Maidment
Affiliation:
Senior Lecturer in Law, University of Keele.
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Extract

It is now eight years since J. C. Hall and J. Eekelaar called for a “reformation” and “clarification” of parental rights. Both of them established, in rather different ways, the difficulty in analysing parental rights as rights rather than as duties or powers or freedoms, the ascendancy in any case of the welfare of the child in almost every example where a parental right came into conflict with the welfare principle, and finally the difficulty of describing the fragmentation of parental rights when these are split up between different people or bodies.

Type
Articles
Information
The Cambridge Law Journal , Volume 40 , Issue 1 , April 1981 , pp. 135 - 158
Copyright
Copyright © Cambridge Law Journal and Contributors 1981

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References

1 Hall, J. C., “The Waning of Parental Rights” [1972B] 31 C.L.J. 248.Google Scholar

2 Eekelaar, J., “What are Parental Rights?” (1973) 89 L.Q.R. 210.Google Scholar

3 [1973] 2 All E.R. 81.

4 Bevan, H. and Parry, M., Children Act 1975 (1978), p. 106.Google Scholar

5 Hoggett, B., Parents and Children (1977), Chap. 1Google Scholar, prefers to call them “incidents” of the parent-child relationship.

6 Eekelaar, op. cit., p. 212.

7 Re N. [1974] Fam. 40, 46.

8 Previously Children Act 1948, s. 2. The Child Care Act 1980 was a consolidation Act relating to children in care voluntarily or by virtue of a local authority administrative resolution. It has repealed totally the Children Act 1948, and parts of many other Acts including parts of the Children and Young Persons Act 1969, and the Children Act 1975. The Child Care Act 1980 comes into force on 1 April 1981.

9 For a fuller discussion, see (in order of helpfulness): Eekelaar, op. cit., Bevan and Parry, op. cit., pp. 105–109; Justice report on Parental Rights and Duties and Custody Suits, 1975, pp. 8–25Google Scholar; Freeman, M. D. A., Children Act 1975 (1976).Google ScholarHoggett, B., op. cit., pp. 10–22Google Scholar; Hewer v. Bryant [1970] 1 Q.B. 357, 373Google Scholar; Hall, op. cit.

10 It is probably not the case that the welfare of the child overrides the parental right to agree to adoption: see Freeman, M. D. A., New Law Journal, 14 July 1977.Google Scholar

11 Guardianship of Minors Act 1971, s. 1.

12 This is Eekelaar's, op.cit., and Justice's, op. cit., thesis.

13 Cf. Justice, op. cit., p. 7.

14 See Hewer v. Bryant [1970] 1 Q.B. 357.Google Scholar

15 Eekelaar, op. cit., p. 231.

15a It is not possible yet to foresee the implications of the dicta in the Court of Appeal in Dipper v. Dipper [1980] 2 All E.R. 722Google Scholar, either at this point or in the following discussion of sole and joint custody orders. Dipper v. Dipper not only contradicts the normal use currently adopted, but is also internally inconsistent. See further the Note by Hall, J. C., supra, at p. 10.Google Scholar

16 Bevan and Parry, op. cit., p. 104.

17 [1970] 1 Q.B. 357.

18 See further on this point, Lowe, N. and White, R., Wards of Court (1979), p. 239.Google Scholar

19 See Parliamentary answer in Lowe and White, op. cit., p. 239, n. 18.

20 As Lowe and White, op. cit., p. 239, say, this is a necessary inference. It is surprising that no amendment to the Adoption Act 1958, s. 4 (3), was made to clarify the point. See further. Bevan and Parry, op. cit., p. 112.

21 Bevan and Parry, op. cit., pp. 111–113.

22 Bromley, P., Family Law, 5th ed. (1976), p. 386.Google Scholar

23 Departmental Committee on the Adoption of Children, Cmnd. 5107, 1972.Google Scholar

24 In Maidment, S., “A Study in Child Custody” (1976)Google Scholar 6 Family Law 195, 236, no custody order was made in 6 per cent. of the sample.

25 As in Re M. [1967] 1 W.L.R. 1479.

26 In Maidment, S., op. cit., it was found that in 94 per cent. of cases sole custody was ordered.Google Scholar

27 e.g., Justice, op. cit., p. 9; Law Commission Working Paper No. 53, Matrimonial Proceedings in Magistrates' Courts (1973), p. 80.Google Scholar

28 [1972] 1 W.L.R. 881.

29 There is however an unusual reference to this type of order in the Marriage Act 1949, Sched. 2, Whereby where parents are divorced or separated, consent to marriage is required from both parents “if the custody of the infant is so committed to one parent during part of the year and to the other parent during the rest of the year.”

30 Time Magazine, 29 January 1979, p. 45.Google Scholar

31 This is no longer so in theory under the Divorce Reform Act 1969, now the Matrimonial Causes Act 1973.

32 Law Commission No. 77, Report on Matrimonial Proceedings in Magistrates' Courts, H.C. 637, 1976–77, pp. 67–70.

33 Freeman's description in the Current Law Statutes commentary as a “split order” is wrong. The Law Commission was against split orders (Law Commission No. 77, op. cit., pp. 67–70) and certainly intended to create a formula for joint orders.

34 Maidment, S., op. cit., and n. 26.Google Scholar

35 [1963] Ch. 238.

36 In the report at [1962] 3 All E.R. 970, 972, the word “name” reads “control.” This makes an important difference because of the word's much wider significance. But the Chancery report is the official one.

37 Re T. was decided 11 years before the father's common law rights over his children were replaced by statutory equal parental rights, which explains the terminology used. There is no reason to suppose that the Guardianship Act 1973 has changed the non-custodian parent's position. The effect of the Guardianship Act 1973 was in fact on the contrary to create both mother and father as natural guardians of their child. Great exception was taken to the Re T. terminology and reasoning in the Australian case, Arthur and Comben (1977) Family Law Cases 90–245.Google ScholarDemack, S.J. stated that under the Family Law Act 1975,Google Scholar s. 61 (1) a non-custodian father had no residual rights over his child. With respect this writer considers his view wrong.

38 This is confirmed in the Children Act 1975, s. 85; and see earlier comments concerning “mutual rights.”

39 M. v. M. [1973] 2 All E.R. 81.Google Scholar

40 But see later discussion, infra.

41 Bevan and Parry, op. cit., p. 112.

41a For a rare example of a declaration of unfitness under s. 42, see ACB v. JLB (1979) New L.J. 547.Google Scholar

42 Bromley, op. cit., p. 298.

43 [1978] Fam. 105.

44 The reference to “him as their father” suggests a reversion of custody to him.

45 The most that a court can do when making an exclusion order under s. 4 (4) is to grant a right of access to the parent (s. 10). It can also make a custody order—by implication this cannot be to the excluded parent—and a maintenance order against the parent.

46 My italics. What does “claim” mean? Is it necessary to get a court order to enforce the claim, or is self-help appropriate?

47 Re N. [1974] Fam. 40Google Scholar; and see generally, Maidment, S., “The Step-relationship and its Legal Status” (1976) 5 Anglo-American Law Review 259.Google Scholar

48 Bromley, op. cit., p. 390. See also Lowe and White, op. cit., p. 234 who agree and discuss the problem fully.

49 [1974] Fam. 40.

50 Applications for custody can only be made by a parent under the Guardianship of Minors Act 1971,Google Scholar s. 9.

51 Bromley, op. cit.

52 Levin, J., “Step-parents and Guardians” (1974) 124 New L.J. 507Google Scholar, seems to agree (p. 508). She says: “For example although a legal guardian has the right to possess the child it appears he has not the right to visit it where the child lives with someone else, or at least he has no right under the Act to get a court order on this. He will also find difficulties in enforcing his right to physical care of the child.” She then retracts in the next paragraph: “It might be argued that by appointing a person sole guardian the court automatically also orders that that person shall have custody of the child, unless the contrary is specifically ordered, and that thus there is no need for provisions enabling a sole guardian to apply for custody. Thus the court should be able to use its enforcement procedures to assist a person appointed sole guardian to acquire or retain possession of his ward in just the same way as they would be used to enforce a custody order in favour of a parent.”

53 Hall, op. cit., p. 264.

54 There have been constitutional difficulties arising out of this section: Robertson (1977) Family Law Cases 90–214Google Scholar; but the indended principle is clear.

55 High Court, county court, or magistrates' court (Children Act 1975, s. 100).

56 Matrimonial Causes Rules 1968, r. 72 (3) only allowed a guardian or other person who had custody or care of a child by virtue of a court order to intervene without leave.

57 (1973) The Times, 16 Febraury.

58 (1973) The Times, 27 Febraury.

59 It is perhaps this point which led Goldstein, J., Freud, A., and Solnit, A. to recommend that custody orders should be irrevocable (Beyond the Best Interests of the Child (1973)).Google Scholar

60 Children Act 1975, s. 9 (2).

61 Eekelaar, op. cit., p. 231.

62 [1893] 2 Q.B. 232, 239.

63 Lowe and White, op. cit., p. 85.

64 Ibid.

65 Ibid., p. 84.

66 Ibid., p. 71.

67 Ibid., p. 72.

68 Ibid., p. 6.

69 [1967] 1 W.L.R. 396.

70 Lowe and White, op. cit., p. 242, and F. v. S. [1973] Fam. 203.

71 Previously Children Act 1948, s. 1. And see n. 8, supra.

72 For a fuller discussion of the fragmentation of parental rights when children are in local authority care, see Maidment, S., Journal of Social Welfare Law (forthcoming).Google Scholar

73 Bevan and Parry, op. cit., p. 104.