10th Australian National Family Law Conference Melbourne, 16-20 March 2002

Concurrent Session V: Who’s the boss? Parental responsibility and the welfare of the child

Why Just ‘Parental’ Responsibility? Why Not ‘Family’ Responsibility?
Musings from a multi cultural family lawyer

A Manifesto

The concept of parental responsibility is past its use-by date. It should be consigned to the dustbin of legal history, like the Roman law concept of paterfamilias. Society needs a new standard: that of family responsibility. By this I mean that family members should be responsible for each other and that the extent of the ‘bundle’ of rights accorded to each family member should depend on the degree of responsibility exercised in practice by each member, whether such responsibility is accepted voluntarily and lovingly or imposed by the law. The idea of family should be broadly defined to encompass disparate cultural and social models so that the general principle of family responsibility can be adapted pragmatically to specific circumstances.

Thus I endorse the German law that children are legally obliged to financially support their aging parents, with the concomitant rule (followed in Spain) that a young person should not be entitled to welfare benefits if the family can afford to provide support. My basic premise also leads me to criticise laws, such as in France, Sweden and Germany, which prohibit a father from totally disinheriting an unrepentant prodigal son. Responsibilities conferring rights, yes, but no rights without responsibilities.

I believe the shift from parental to family responsibility is evident in law and society already. The traditional nuclear family of married husband and wife with children of their own maintaining mutual financial and emotional interdependence for life, however desirable, is becoming less common. Laws are beginning to reflect this, particularly in countries like Australia which tend regularly to update legislation to bring law into line with social reality. Examples include the adoption, status of children and de facto relationships legislation introduced by the various states and territories from the 1970s and 1980s. This trend continued in the 1990s. Look, for example, at the definitions in Section 60D of the Family Law Act of “de facto relationship”, “relative” and “member of the family”, introduced in 1995. Practical examples of this widened scope of family responsibilities and rights in respect of children include Section 66D (step-parent maintenance obligations), Section 65C(ba) (expressly naming grandparents as having rights to apply for a parenting order) and the quite radical Section 64C and Section 65C(c) which open the door to just about anyone concerned with the child.

The enlightened Australian approach to family responsibilities and rights contrasts markedly with the depressingly antediluvian attitude in the United Kingdom, particularly within the jurisdiction of England and Wales (the Scots, to their credit, are at least trying to use their recently devolved national powers to introduce some new ideas, like getting rid of fault-based divorce!)

My main aim in this paper is to highlight just a few examples of the significant differences in the way parental responsibility is interpreted in the United Kingdom jurisdictions and Australia. I will conclude by recommending that other countries should take careful note of some of the encouraging recent developments in Australian family law.

Parental Responsibility in England and Australia: Some Similarities …

One could be forgiven for assuming that the law relating to parental responsibility in England and Wales (hereinafter England, with apologies to the Welsh) is basically the same as in Australia. After all, the Australian colonies and, later, the states and the federal Commonwealth, were created by legislation enacted in the Parliament at Westminster, we share a common law heritage and Part VII of the Family Law Act, introduced in 1995, owes much to the UK Children Act 1989, particularly the concepts of parental responsibility, residence and contact. English and Australian family lawyers share a common understanding of the principle of parens patriae, which obliges the sovereign government, through its Parliament and its courts, to protect the interests of those unable to protect themselves, particularly children. The inherent jurisdiction of the superior courts in Australia and England to exercise parens patriae powers continues, although much of the power has been incorporated in specific legislation, in Australia to a greater extent than in England.

In 1992 a majority of the High Court of Australia held in Marion’s case that the Family Court of Australia had jurisdiction similar to parens patriae to enable the Court to authorise the sterilisation of a severely intellectually disabled girl and, further, that the girl’s parents themselves did not have such authority. Although the Family Court’s jurisdiction in this regard is founded on the parens patriae principle, the High Court held that the 1983 amendments to the Family Law Act provided sufficient legislative power for the Court to order the medical procedure (Secretary, Department of Health and Community Services v JWB and FMB (1992) FLC 92-293). It is interesting to note that in Marion’s case the girl’s parents made the initial application to the Family Court in order to ask whether they could authorise the sterilisation operation themselves or whether the Court’s authority was required. As Nicholson CJ explained in his subsequent judgment authorising the operation, in the circumstances of the case the parents probably could have consented to the operation without the Court’s authority because it was necessary for medical and therapeutic reasons (In re Marion (No 2) (1994) FLC 92-448).

The High Court expressly approved of the House of Lords approach in Gillick v West Norfolk and Wisbech AHA [1986] AC 112, accepting that parental authority to consent to medical treatment on behalf of the child diminishes gradually as the child’s capacities and maturity grow.

Marion and Gillick, decided close together by the highest courts in each jurisdiction, show how English and Australian jurisprudence follow similar lines when it comes to authorising medical treatment of children. The responsibility and the right to make decisions about medical treatment are shared between parents and the court. Depending on the circumstances of a particular case, parents may decide in favour of medical treatment unilaterally, or they may seek the court’s approval of a proposed treatment or the court may impose a decision on unwilling parents.

This last scenario arose in England a couple of years ago when the Court of Appeal had to decide whether to order the separation of conjoined twins Jodie and Mary, knowing that the weaker twin would die instantly in the course of the operation. The parents had refused permission for the surgery but the hospital applied to the High Court for authority to carry out the operation which, on the evidence, would probably result in the stronger twin surviving. The Court of Appeal held that it had the power to authorise the operation on the basis of Section 1(1) of the Children Act 1989 which places the court under a duty to do what is dictated by the child’s welfare. In this case the Court of Appeal had to balance the interests of two children with potentially conflicting interests. It is impossible to imagine a more difficult case for a judge to decide. The good news is that, at last report, the surviving twin is thriving. (Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1).

What do Gillick, Marion and Re A tell us? The general rule seems to be that in ordinary circumstances parents have the responsibility and right to determine questions of medical treatment in respect of children, but in difficult cases they may have to ask a court for permission and that in exceptional cases the court can over-ride the wishes of the parents in the interests of the child, (such decision to be made in the light of the child’s wishes, bearing in mind the child’s maturity and capacity).

But let us now step beyond the cosy hearth of the traditional married nuclear family and look at some areas in which English and Australian lawyers may not so easily agree with each other.

And Some Differences …
Children of Unmarried Parents

When is a father not a father? Indeed, with reproductive technology bringing new surprises at a bewildering rate, when is a mother not a mother? Who are the parents of a child born pursuant to a commercial contractual surrogacy arrangement where the “residence” parents have purchased the anonymous services of separate sperm, ovum and womb vendors? Can the solicitor who draws the surrogacy agreement join the list of those sharing legal responsibility for the resulting child?

In England children whose parents are not married to each other have no right to know their father. The father has no legal responsibility or rights in relation to his child unless the mother or a court wishes to grant or impose certain duties, for example, parental responsibility or the obligation to pay child support. This is usually categorised as unmarried fathers having no rights but in my view a more accurate analysis is that the child has no right to a father in the absence of the mother’s agreement or a court order.

In Australia the state legislatures began to remove this injustice against ex nuptial children in the mid 1970s with status of children legislation, culminating in the 1987 amendments to the Family Law Act following the referral of state powers over children to the Commonwealth. Section 61C(1) of the Family Law Act now provides that each of the parents of the child has parental responsibility, and this applies whether the parents are married to each other or not.

Western Australia finally fell into line on 26 September 1998 when the new Family Court Act 1997 (WA) came into operation introducing, inter alia, joint parental responsibility irrespective of the marital status of the parents (Section 69). One must fear for the stability of Sandgroper society following the implementation of such radical legislation!

Sometimes it seems that law reform follows the Sun in the southern hemisphere. Status of children legislation removing the stigma of illegitimacy was first enacted in New Zealand in 1969, followed by Victoria and Tasmania in 1974, South Australia in 1975, New South Wales in 1976, Queensland and Northern Territory in 1978. At this rate, allowing for Western Australia fitting into the timetable in 1998, I expect similar legislation to come into force in England some time during the fourth Millennium.

Unmarried fathers in England who seek a parental responsibility order under the Children Act 1989 have an uphill battle in the Court of Appeal. In a series of reported decisions their Lordships have made it clear that the unmarried father must be a much better parent than a married father if he is to have the honour of parental responsibility bestowed on him. He must show that he has behaved, or will behave, with parental responsibility for the child (D v Hereford and Worcester County Council [1991] 1 FLR 205), he must not be violent towards the child (Re H (Parental Responsibility) [1998] 1 FLR 855) and he must not be motivated by a desire to undermine the mother’s care of the child (Re T (Parental Responsibility) [1998] 2 FLR 96).

Unmarried English fathers also have little say in the names of their children and can expect scant help from the courts when they want to be identified on the birth certificate. Examples include the House of Lords decision in Dawson v Wearmouth [1999] 1 FLR 1167, where the mother preferred the new baby to have the same surname as two half-siblings from the former marriage, and the Court of Appeal decision in the trilogy of Re W; Re A; Re B (Change of Name) [1997] 2 FLR 930 where in all three cases the Court decided that it would be in the best interests of the children for the unmarried father’s names not to appear on the birth certificate. Perhaps these decisions were right in the particular circumstances of each case but it strikes me as odd that the last reported Australian case on changing a child’s surname was Fooks v McCarthy (1994) FLC 92-450.

Perhaps the reason that Australian fathers, whether or not married, do not have to go to court over the naming of their children is that Australian society has come to regard it as normal for a child to carry the father’s surname. Perhaps English unmarried fathers are more litigious than their Antipodean brethren because, without parental responsibility, they feel they need to prove a point. This is clearly a subject for comparative sociological research.

In the absence of further legal or sociological evidence at this stage, I conclude tentatively that in Australia unmarried parents stand on an equal footing with respect to their responsibilities and rights but in England the unmarried mother, supported by the legislation and the courts, is definitely the boss.

Grandparents

As mentioned in the first section of this paper, Australian grandparents are given special recognition in Section 65C(ba) of the Family Law Act. The Parliament of Westminster has not been so kind to English grandchildren.

By Section 10(1) of the Children Act 1989 any person who does not fall into a specific category (for example, parent, guardian, carer, etc) must first apply for leave for a parenting order, such as contact. In Re M (Care: Contact: Grandmother’s Application for Leave) [1995] 2 FLR 86 the Court of Appeal put three hurdles in the old lady’s path, including a requirement that she must satisfy the Court that she has a good arguable case. In Re A (Section 8 Order: Grandparent Application) [1995] 2 FLR 153 it was held that there is no presumption that a grandparent should have contact with a grandchild. In Re W (Contact: Application by Grandparent) [1997] 1 FLR 793 it was conceded that grandparents’ influence is likely to be beneficial if exercised with care and not too frequently. In two out of these three cases the grandparents were unsuccessful in their applications for leave. The difficulty grandparents face in England was the subject of a short article, Grandparents and the Children Act 1989 by Rosalind Carne in July [1996] Fam Law 416. A Grandparents Association has been set up in the UK to lobby for a better understanding of grandparents at loggerheads with their children over contact with the grandchildren.

I am at a loss to explain the difference in attitude to grandparents between England and Australia. The view of the Court of Appeal seems almost to be that grandparents are a nuisance unless they agree to have only infrequent involvement with the extended family. The unspoken principle seems to be that the married nuclear family is almost sacrosanct and ought to be protected from interference by such outsiders as step-parents, unmarried fathers, grandparents and other family members. The contrast with the generously inclusive provisions in the Australian legislation, particularly the broad definitions of “member of the family” in Section 60D(2) and “relative” in Section 60D(3), is stark.

Perhaps a clue to the differences in approach is found by comparing the welfare principle criteria in each Act. Section 68F of the Family Law Act incorporates all of the welfare checklist criteria found in Section 1 of the Children Act 1989 but then goes on to include a long list of other factors a court must consider, notably family background, lifestyle, culture and traditions. The Australian legislation sees the child’s interests as being bound up with not just the nuclear family but the broader extended family and community. The English legislation focuses on the child within the married nuclear family.

Other Differences

The apparent English prejudice against grandparents and children whose parents are not married to each other are but two examples of how their laws affecting children differ from those in Australia. Others which fall outside the scope of this paper include:

Will England see the light?

I do not sense any feeling of an urgent need for reform of the law relating to parental responsibility among the English legal community (legislators, judges, lawyers). Very few seem enthusiastic about granting automatic parental responsibility to unmarried fathers, or letting grandparents and other members of the extended family have more than limited rights in respect of children. Although there are reform bills currently before Parliament (mentioned above) they are likely to encounter difficulty, particularly in the House of Lords which, one must remember, still gives the Bishops of the Church of England a vote. Therefore I predict that the gulf between Britain and Australia, not just with respect to child law but for family law generally, will continue to perplex lawyers in both countries for some time yet.

My pessimism about the law reform process in England is based on experience. When I came to London from Melbourne in 1989 I was invited to work on proposals for the establishment of a child support agency along the lines of the Australian CSA which had been set up in 1988. I was part of a Law Society delegation which gave evidence to a Parliamentary Select Committee. I remember explaining to the Honourable Committee Members what we had got right and what we had got wrong with our CSA in Australia and I made some helpful suggestions as to how Britain could learn from the Australian experience. When the legislation was enacted in 1991 it was obvious that the government had listened to me, but unfortunately they had mixed up my Do List with my Don’t List. The formula was impossibly complex, not simple; the legislation had retrospective effect; there was virtually no provision for departure from the formula in hard cases; CSA staff were inadequately trained; etc. The Great Child Support Disaster of 1991 convinced me that getting a British Conservative Government to pass sensible family law legislation was a lost cause. When New Labour axed the no-fault divorce reforms last year I realised that all hope of law reform was in vain. I now agree with my English colleagues that if family law is to change in England the change will come through the courts, not through the Parliament.

Nevertheless, hope swells in my breast when I look across the Channel to Brussels. European law is making rapid inroads into the common law of the Sceptr‘d Isle. European Council regulations can now have direct effect in Member States of the European Union without the necessity for each country to enact domestic adopting legislation. English lawyers were shocked last March when Council Regulation (EC) No 1347/2000 of 29 May 2000 (Brussels II) came into force and suddenly changed the divorce jurisdiction basis throughout the EU (except in Denmark which opted out). Brussels III, a new Regulation dealing with mutual recognition of matrimonial property adjustment orders, and Brussels IV, which is intended to deal with inheritance rights, are lurking just around the corner.

There is wonderful irony in the fact that the Eurostar train which travels through the Chunnel direct between Brussels and London every day, packed with Euro bureaucrats working on EU Council Regulations, starts and ends its journey at Waterloo Station. A wit has described the European Council initiatives as the imposition of the Code Napoleon by rail, almost 200 years after the famous battle in 1815. Yes, Britain is being railroaded!

In conclusion

The question posed for consideration in this Concurrent Session today is “who’s the boss?” in the context of parental responsibility and the welfare of the child. To this provocative question I have responded with a perhaps too-audacious proposal that we should think more in terms of family responsibility than parental responsibility to take account of modern realities. With respect, I suggest that the idea that someone is the “boss” of a child is an unhelpful concept. Rather we should think more clearly about how to ensure that the best interests of the child are protected by coordinating the roles of all concerned.

We should start from the premise that, where the child is old enough, his or her wishes ought to be given substantial weight. In situations where the child is close to the age of majority perhaps wishes should be virtually determinative unless the welfare principle over-rides this, for example, in cases of medical emergency.

For younger children it is apparent that in many, if not most, cases responsibility is, or should be, shared between one or more parents (broadly defined to include birth parents, genetic parents, adoptive parents, and persons charged with the daily care), the extended family and the community through its various agencies (education authorities, health services, welfare authorities, police, courts, etc). There are many separate strands in the bundle of responsibilities and rights shared among this group. I believe the key to making decisions in the best interests of the child lies in prioritising the rights of each group in the following order:

First, the child, whose wishes should be accorded significance as appropriate to his or her level of maturity, understanding and capacity.

Second, the parents (broadly defined), whose rights should be commensurate with the degree of responsibility taken for the child’s welfare, and on whom responsibility should be imposed to the extent that this benefits the child.

Third, the extended family, whose rights and responsibilities should be secondary to those of the parents and granted or imposed to the extent that this benefits the child.

Community agencies fit in to the model only to the extent necessary to support the responsibility of the family towards the child, or in situations where no family member can exercise meaningful responsibility.

As a specialist international family lawyer with a practice which remains substantially Australian (albeit with international features) I feel qualified to express the personal view that Australia has, for the most part, got the balance about right. We are fortunate in Australia to have such institutions as the Family Law Council and the Institute of Family Studies and governments at federal and state level which, from time to time at least, listen to common sense proposals for family law reform. The energetic efforts of the Family Law Section of the Law Council of Australia and the family law sections and committees of the various state and territory professional bodies also play a significant role in helping to keep Australian family law in touch with current community values. Although Australian family lawyers will inevitably see problems in the way their system operates, compared to the rest of the world we are in a most fortunate position.

The Family Law Act 1975, as amended in 1995, already goes part of the way towards establishing family responsibility, rather than parental responsibility, as the key to promoting the best interests of children. Perhaps it is too early to change the terminology of the legislation but the idea should at least be considered. Australia is a world leader in family law reform. The United Kingdom jurisdictions have imported many ideas devised or improved in Australia, including a Child Support Agency, mediation models, Family Court case management systems, and specialist accreditation of family lawyers. The Adoption and Children Bill and the Civil Partnerships Bill, which are currently before the Westminster Parliament, owe much to Australian precedents. Despite the pessimism I expressed earlier, perhaps it is not beyond thinking that, one day, the UK jurisdictions will grant unmarried fathers automatic parental responsibility and provide a sensible legislative regime for the regulation of de facto relationships. The work that Helen Rhoades and her colleagues have done on shared parenting and contact enforcement has been cited in the British government consultation paper Making Contact Work published last year. This may form the basis of legislative reforms in the UK along the lines of the Family Law Amendment Act 2000 in Australia.

If Britain can embrace the philosophy of the 2000 amendments, perhaps it will also look again at the 1995 amendments and consider moving towards an Australian model of family responsibility to replace the outmoded concept of parental responsibility. If so, this could lead the European Union jurisdictions to follow suit with Council regulations made in Brussels, and perhaps the Hague Conference on private international law could introduce family responsibility to the world through a new Convention.

David Truex
20 March 2002

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