4.21Subsection (6), though rather clumsily drafted, at least appears to draw a distinction between parents who are on good terms who would need to give joint consent, and parents who are not living together. It should be noted that a court order is not required as proof so the only question is what proof would be needed that one parent was not living with the child but still maintaining regular contact with him.
4.22The Commission explained that this provision:
“would be useful to remove any doubts about the removal of a child to a foreign country by one parent alone without the consent of the parent with whom the child is living is a wrongful removal for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction. We do not intend the right of independent action by one parent to provide grounds for any argument that he or she is within his or her rights, and not in breach of anyone else’s rights, in removing the child without the other parent’s consent.”530
Court order prevails
4.23Section 2(8) of the 1989 Act provides that: “The fact that a person has parental responsibility for a child shall not entitle him to act in any way which would be incompatible with any order made with respect to the child under this Act.”
4.24In a similar spirit to the above section, the rights and responsibilities are further balanced by a provision in section 3(4) of the 1989 Act that these do not entitle a parent to act in any way which would be incompatible with a court order relating to a child or supervision or his property. Section 3(4) of the Scottish Act incorporated both of the English provisions.
4.25The Commission agreed that there should be similar provisions to sections 2(9), (10) and (11) of the Children Act 1989. This was implemented in section 3(5) which provides that:
“Without prejudice to section 4(1) of this Act, a person who has parental responsibilities or parental rights in relation to a child shall not abdicate those responsibilities or rights to any one else but may arrange for some or all of them to be fulfilled or exercised on his behalf; and without prejudice to that generality any such arrangement may be made with a person who already has parental responsibilities or rights in relation to the child concerned;
(6)the making of an arrangement under subsection (5) above shall not affect any liability arising from a failure to fulfil parental responsibilities ....”
530 Supra at 2.56.