4.82The Commission concluded that the more modest duty, contained in section 41 of the Matrimonial Causes Act 1973 as substituted by the Children Act 1989, should be introduced. However, the Commission recommended that the court should be given power to make orders even if they were not applied for similar to section 10(1)(b) of the 1989 Act. “This is consistent with a child-centred approach to parental responsibilities and rights, although no doubt it would be rare for this power to be exercised.”581 This recommendation was inserted into section 11(3)(b) of the Act.
Child of the family
4.83Section 12(4) provides that:
“In this section ‘child of the family,’ in relation to the parties to a marriage, means:
(a)a child of both of them; or
(b)any other child, not being a child who is placed with those parties as foster parents by a local authority or voluntary organisation, who has been treated by both of them as a child of their family”.
Effect of orders
4.84Section 12(2) of the Children Act 1989 provides that:
“Where the court makes a residence order in favour of any person who is not the parent or guardian of the child concerned that person shall have parental responsibility for the child while the residence order remains in force.”
4.85The Commission was strongly pressed to incorporate a similar provision in Scotland as, “if a court decided that a child was to live with, say, a grandmother, it was entirely appropriate that the grandmother should have parental responsibilities and rights.” However the Commission had reservations: “We think that it would be better not to talk of a residence order ‘in favour of’ someone. That re-introduces the idea of winners and losers which the new terminology seeks to abandon.”582 The following recommendation of the Commission has been included in section 11(12) of the Act:
“Where a court makes a residence order to the effect that a child is to live with a person who is not a parent or guardian of the child concerned, that person should have parental responsibilities and rights in relation to the child while the residence order is in force”.
581 Ibid at 5.35.
582 Ibid at 5.37.