Parents' Right of Independent Action

After parents separate they sometimes disagree about aspects of their children's upbringing. This could affect, for example, how their religion is practiced or what television programmes they watch. Parents often ask me when are they legally required to obtain each other's permission and when can they make decisions alone. With thanks to Dino Sikkel, here is a summary of what the law currently says.

In general each parent with parental responsibility may act alone, and without the other parent’s consent, to meet that responsibility - particularly in the day to day affairs affecting the child or in any emergency (such as urgent medical treatment). This ‘right of independent action’ is a legal right set out at section 2(7) of the Children Act 1989.

There are, however, some exceptions to this general rule, where action cannot be taken without the consent of the child's other parent, such as -
 
·         Changing the child’s surname

·         Changing the country of the child’s habitual residence

·         The decision to circumcise the child

·         The decision to immunise the child as part of preventative healthcare; and

·         The child’s education

 
In a relatively recent case A v A (shared residence) from 2004, a helpful list of items was suggested to the judges that they were happy to approve. Whilst written in the context of a family in which the parents had "shared residence" for a child the court was of the view that it can be adapted to meet circumstances where one parent has a residence order and the other a contact order. The schedule is as follows: -

 

Decisions that can be taken independently and without any consultation or notification to the other parent
-       How the child is to spend their time during contact
-       Personal care for the children
-       Activities undertaken
-       Religious and spiritual pursuits
-       Continuance of medicine prescribed by a GP
 
Decisions where one parent would always need to inform the other parent of the decision, but did not need to consult or take the other parent’s views into account.
-       Medical treatment in an emergency
-       Booking holidays or to take the children abroad during contact time
-       Planned visits to the GP and reasons for this
 
Decisions that you would need to both inform and consult the other parent about prior to making the decision:
-       Schools the children are to attend, including admissions applications. With reference to which senior school a child should attend, this is to be decided taking into account the child’s own views and in consultation and with advice from the child’s teachers.
-       Contact rotas in school holidays
-       Planned medical and dental treatment
-       Stopping medication prescribed for the children
-       Attendance at school functions so they can be planned to avoid meetings where possible
-       Age that the children should be able to watch videos, i.e. videos recommended for children over 12 and 18
 

 

Two further things should be borne in mind. Firstly an Act of Parliament may require the consent of more than one person in a matter affecting the child, for example, agreement to adoption, consent to marriage and consent to taking the child out of the United Kingdom. Secondly, any action taken by a parent must be consistent with any court order that may previously have been made under the Children Act 1989.

 
If one parent wishes to prevent or challenge independent action taken by the other parent, s/he can apply for an order from the courts restricting the actions of that party (a “prohibitive steps order”) or an order obliging that party to take a particular course of action (a “specific issue order”).

Alex Davies is a partner and head of the family team at Cripps Harries Hall.

Dino Sikkel is a trainee solicitor in the family team at Cripps Harries Hall.