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parents in the form of parental responsibility.  Mothers and fathers therefore have equal status with respect to the upbringing of the child.

3.6Parenthood is now regarded as the primary concept and distinguished from guardianship.  As explained by Bromley and Lowe, guardianship can now be said to be:

“the legal process by which a person is given parental responsibility for a child on the death of one or both of the child’s parents.  In short a ‘guardian’ is someone who has been formally appointed to take the place of the child’s deceased parent.”248

Parental responsibility

3.7The philosophy of the Children Act 1989 is to promote the family so far as is consistent with the welfare of the child.  It rests on the belief that children are generally best looked after within the family, with both parents playing a full part and without resort to legal proceedings.

3.8The Children Act 1975 used the phrase “parental rights and duties” to describe all the rights and duties a mother and father had in relation to a legitimate child and his property.  The English Law Commission considered that to talk of parental “rights” was not only inaccurate, as a matter of juristic analysis, but also a misleading use of ordinary language.  The House of Lords had held that the powers which parents have over their children exist only so that they may perform their responsibilities to them.249

3.9The 1989 Act therefore replaced the existing terminology by the phrase “parental responsibility” which is defined in the Act as “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.”250  The concept of “parental responsibility” signifies a shift “from the proprietorial connotations of ‘rights’ towards a more enlightened view which emphasises that children are persons rather than possessions.”251

3.10The acquisition of parental responsibility is crucial in determining which persons have decision-making authority concerning a child.  It is this legal status which is all important, however close or distant the de facto relationship with the child may be.  A grandparent, physically caring for a child, may have less power and authority in law than an absent parent who scarcely ever sees the child.  It is for this reason that court orders are needed to regulate the acquisition and exercise of parental responsibility.  However, it is by no means clear what legal action (if any) may be taken to prevent interference with parental responsibility.252  Those with parental responsibility have the right to consent to the child’s marriage.253  However, the concept of parental responsibility does not include rights of succession to the

248 Bromley & Lowe, op cit at 395.

249 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.

250 Section 3(1).

251 Bainham, Children - The Modern Law (1993) 63-4.

252 Ibid at 64-5.

253 Marriage Act 1949, section 3(1A), added by Schedule 12, paragraph 5(2) of the Children Act 1989.

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