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The power to act independently

3.50More than one person may have parental responsibility at the same time.333  It is usual for the child’s parents to have parental responsibility at the same time but the previous law was not clear whether they may act independently.  The Children Act 1989 provided that where more than one person has parental responsibility, each of them may act independently in meeting that responsibility without the need to consult the other except where statute expressly requires the consent of more than one person.334

3.51The general aim of the Act is to encourage both parents to feel concerned and responsible for the welfare of their children.  Although it is preferable that parents should have a legal duty to consult one another on major matters in the children’s lives, because this would increase parental co-operation and involvement after separation or divorce, the English Law Commission noted that this seemed both unworkable and undesirable:

“The person looking after the child has to be able to take decisions in the child’s best interests as and when they arise.  Some may have to be taken very quickly....  The child may well suffer if that parent ... has to go to court to resolve the matter, still more if the parent is inhibited ... by the difficulties of contacting him or of deciding whether what is proposed is or is not a major matter requiring consultation.  In practice, where the parents disagree about a matter of upbringing the burden should be on the one seeking to prevent a step which the other is proposing, or to impose a course of action which only the other can put into effect, to take the matter to court.  Otherwise the courts might be inundated with cases, disputes might escalate well beyond their true importance, and in the meantime the children would suffer.”335

3.52Bainham made the criticism that by failing to provide for consultation and a right of veto, the Act, while in form appearing to favour joint parenting following breakdown, “in substance reinforces the already superior de facto position of the person with physical care”.336  The following are his comments:

“If, therefore, a major aim of the reformed legislation is to strengthen and encourage dual parenting we might have expected to see ...  provisions relating to co-operation or consultation....  The Act not only fails to embrace consultation, it also removes the former right of objection which parents had during marriage....  But the implication is nonetheless, that joint independent rather than co-operative parenting, is the normative standard ... reflected in the law.”337

3.53Elsewhere, Bainham made the following observation:

333 Section 2(5).

334 Section 2(7); section 13(1) and (3).

335 Law Com No 172, paragraph 2.10.

336 Bainham [1990] Fam Law at 193.

337 Bainham 53 MLR, 211-2, (1990).

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