Understanding mental capacity
Understanding mental capacity

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1.2 Parental responsibility

You now look at the decision making that parents undertake on behalf of their child. The term used to describe this in England, Wales and Northern Ireland is parental responsibility. In Scotland, the concept of parental rights is linked directly with parental responsibilities. 

Where the law in Scotland defines a person as a child that increases the protection that the law offers them but decreases the child’s own personal freedoms. The law likes clear cut-off points. In Scotland there have always been a number of important ages at which a child increases their ability to take control of their own life. The age of 12 is important because a child can make a will at that age. A veto to an adoption order exists from the age of 12. The age of 16 is of crucial importance. At 16 a person may marry. 16 is the age at which compulsory education might come to an end. The age of 18 is of less importance. One of the few remaining consequences of reaching the age of 18 is the right to vote. The age of 25 is also important. (The Scottish Parliament, 2013).

Parental responsibility in practice…

Mother: Don’t do that, Janice!

Janice (child): Why not?

Mother: Because I said so.

Below are some key facts about parental responsibility.

  • Someone with parental responsibility for a child has the legal right to make decisions about them and their upbringing.
  • Anyone who is considering making an important decision on a child’s behalf must obtain the agreement of all who have parental responsibility.
  • The term ‘parental responsibility’ refers to ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’ [Children Act 1989, s.3(1)].
  • In Scotland, parental ‘rights’ relate to where the child shall live, the right to direct the child’s upbringing and the right to maintain contact with them; and ‘responsibilities’ are vested in the child’s mother and father, if they were married, and later for the unmarried father if they subsequently are registered as the child’s father [Children (Scotland) Act 1995, ss.1-3]. This is also the case in England, Wales, and Northern Ireland.
  • Parental responsibility can be acquired by others, but only through formal court procedures. This tends to be relatives, local authorities and adoptive parents. 

The law is very careful to articulate the nature and parameters of parental responsibility and how it is administered in the best interests of children. Legal advice should always be sought if there is any uncertainty about who holds parental responsibility when significant decisions are about to be made. Also, the extent of parental control changes through childhood and generally diminishes to zero at the age of 18, with some exceptions to decision making which are defined by the courts through evolving case law. 

Best interests

The authority acquired by having parental responsibility is based on the assumption that all individuals and public bodies holding it will always act in the best interests of the child. Disputes about whether or not a person with parental responsibility is acting with the child’s best interests in mind are usually complex and ethically challenging, often requiring resolution in the courts. There are also some occasions when urgent action needs to be taken and the person with parental responsibility cannot be consulted. In such circumstances, it may be a defence legally to act without that consent, so long as it was in the child’s best interests. However, such situations are rare and usually relate to medical emergencies. 

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