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“It is possible to offer the tentative view that, in asserting parenthood as a primary and gender-neutral status and in making it so difficult for either parent to divest himself or herself of parental responsibility, the Children Act has given tacit encouragement to the notion of equal co-parenting.”338

3.54Of course the right to act independently must be read with the duty not to act in a way that would be incompatible with an order.  The right to act independently does not mean that a parent can ignore the need to consult the other parent on important issues.  Glidewell LJ said in Re G (a minor)(Parental Responsibility: Education)339 that “the mother having parental responsibility was entitled to and indeed ought to have been consulted about the important step of taking her child away from day school ... and sending him to boarding school.  It is an important step in any child’s life and she ought to have been consulted”.  There had been no prior order so she could not claim that the father was acting incompatibly with a prior order.

Joint responsibility principle

3.55The English Law Commission considered that parents should not lose their ability to take decisions about their children simply because they are separated or in dispute with one another.  The Act therefore supports the idea that “once a parent always a parent” and that the primary responsibility for deciding on the upbringing of the child should remain with the parents even upon their separation.

3.56A person who has parental responsibility for a child does not cease to have that responsibility solely because some other person, such as a step-parent, grandparent or foster parent, subsequently acquires parental responsibility.340  The parents are only prevented from acting in ways which would be incompatible with an order made with respect to the child under the Act.341

3.57The philosophy of the Act is that a parent who does not have the child living with him should still be regarded as a parent so that he can be given information and an opportunity to take part in the child’s upbringing.  He cannot exercise a power of veto over the other, but can refer any dispute to the court if necessary.  It also encourages his involvement with the child and thus promotes the child’s welfare.  Thus, the granting of parental responsibility to, say an unmarried father, would result in the child’s school inviting him to parents’ functions, sending him school reports, giving him a voice in choosing future schools, or in any issue of major medical treatment, or changing the child’s surname.342  The retention of parental responsibility after divorce was intended to minimise conflicts.

Delegation of parental responsibility

338 Bainham, Children: The Modern Law, 61-2.

339 [1994] 2 FLR 964. CA.

340 Section 2(6).

341 Section 2(8).

342 Re P (Child) (Parental Responsibility Order) [1993] 2 FCR 689.

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