Essay on Law, Ethics and Policy

In determining whether Asha’s ex-partner can re-establish contact with Asha and her children, it is essential to determine who has parental responsibility for the children. Section 3 (1) of the Children Act (CA) 1989 defines parental responsibility as “all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” Ordinarily, anyone who has parental responsibility has a duty to maintain, protect from harm, secure and exercise control over his/her children. Additionally, he/she has the right to decide where the children lives, their education and religion, and have contact with them.

According to section 2 (1) of CA 1989, both father and mother automatically acquire parental responsibility if they were married at the time of the birth. In Asha’s case study, there is no mention of the two being married, therefore her ex-partner cannot be said to automatically acquire parental responsibility based on this ground. Further, according to section 2 (2A) of the CA 1989, both father and mother automatically acquire parental responsibility if they were in a civil partnership at the time of the both. In Asha’s case study, it is not explicitly mentioned whether Asha was in a civil partnership with her partnership. In this regard, the ex-partner cannot be said to automatically acquire parental responsibility based on this ground. It is imperative to note that according to section 2 (b) of CA 1989, a mother automatically acquires parental responsibility even if she was not married at the time of birth. Essentially, this means in the case study provided, Asha has full parental responsibility over her two children.

Since from the preceding section, it is prima facie that Asha’s ex-partner neither was married to her nor was he in a civil partnership with her; it is essential to evaluate possible ways through which he can acquire the parental responsibility. Notably, according to section 4 (1) (a) Asha’s ex-partner can acquire parental responsibility of the two children if his name together with Asha’s name is listed on the children’s birth certificate. It should get noted that the provision mentioned above was incorporated into CA 1989 by section 111 of the Adoption and Children Act 2002. However, the provisions only applies to births that were registered after 2006.

Nevertheless, if Asha ex-partner’s name is not listed on the children’s birth certificates, he still can acquire parental responsibility by entering into a parental responsibility agreement with Asha that is duly recorded as delineated by section 4 (1) (b) of CA 1989. However, if this is not possible Asha’s ex-partner can still acquire parental responsibility by applying for a PRO (parental responsibility order) from the court. In case, Asha’s ex-partner opts to apply for a PRO, the court will consider several factors before it can grant him parental responsibility.

According to section 1 (1) of CA 1989, courts normally consider the welfare of the children when they are granting PRO orders. In Asha’s case study, the court can consider her diagnosis of anxiety and depression, which is impeding with her ability to provide adequate care to the children. The court will also consider the fact that Asha is not in any gainful employment, which means she cannot provide food and housing to the two children. It should however get noted that when courts are granting PRO, they are guided by the presumption that issuing the order will only ameliorate the children’s welfare. Essentially, this means that the court will not grant a PRO if it is nor prima facie, that it will result in the enhancement of the welfare of Asha’s two children. Besides, it is imperative to note that PRO order are premised on the assumption that there is a clear relationship between the children and the parent. Arguably, in Asha’s case study there is a clear relationship between the children and the father.

The court in Re H (Minors) (LA: Parental Rights) (No 3) [1991] examined the most important factors for consideration before granting a PRO. Conclusively, the court held that factors such as commitment of the parent and attachment to the children were only starting points. Therefore, the court will always consider other factors in addition to those. In Asha’s case study, it is prima facie that her ex-partner is attached to her children. However, it is not entirely clear whether the ex-partner is committed in the caring and upbringing of the children.

Furthermore, in Re H (PR) [1998], the court emphasised its consideration of other factors when issuing PRO. In particular, the court held that since the father displayed cruel behaviour he could only get joint parental responsibility with the mother. In light of this, it is highly likely that the court will grant Asha’s ex-partner joint parental responsibility. It is only after this that he can legally establish contact with the children.

References

Children Act 1989

Re H (Minors) (LA: Parental Rights) (No 3) [1991] 1 FLR 214

Re H (PR) [1998] 1 FLR 855