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’
Musings from a multi cultural family lawyer
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
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  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)  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
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
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  1 FLR
205), he must not be violent towards the child (Re H (Parental
Responsibility)  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)  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
 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)  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)
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
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)  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)  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) 
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  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
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.
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
- Adoption, which is still governed by 1976 legislation
(with some amendments brought in by the Children Act 1989) reflecting
many social attitudes and legal practices which were swept away
in most Australian states and territories in the 1980s and 1990s.
Hopeful sign: an Adoption and Children Bill is before Parliament.
- De facto relationships, which have not been
the subject of legislative reform as in Australia. De facto property
disputes are still governed by the law of trusts and contract.
Hopeful sign: a Civil Partnerships Bill is currently before Parliament.
- Divorce, which for most English couples is
still a “quickie” process based on alleging fault such as adultery
or unreasonable behavior. Ambitious no-fault reform legislation
passed in 1996 was subsequently repealed after a relentless disinformation
campaign by conservative elements in British society. Hopeful
signs: none except in Scotland, which may soon pass a new divorce
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!
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
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
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
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.
20 March 2002
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