UNIVERSITY OF THE WEST INDIES

THE FACULTY OF LAW

LAW3220 FAMILY LAW II

RIGHTS AND RESPONSIBILITIES IN RELATION TO CHILDREN

Worksheet 4

Readings: J Herring, Family Law

Z McDowell, Elements of Child Law in the Commonwealth Caribbean –
Ch 1, 5, 6, 12, 13
Cretney – Principles of Family Law – Ch 19
A Bainham, Children: The Modern Law – Chs 5, 15

1. UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD

(i) In all actions concerning children, the best interests of the child is the
primary consideration – Article 3

(ii) Right to Life and Development – Article 6, Right of a mature child to

express their opinion- Article 12
This right has implications for medical decision making.

(iii) Right to an Identity and Presentation of Identity – Articles 7 & 8

The articles provide that a child shall be registered immediately after birth
and shall have the right from birth to a name, the right to acquire a
nationality and the right, as far as possible, to know and be cared for by
his parents.

(iv) Right not to be Separated from Parents – Article 9

A child shall not be separated from his parents against his will, except by
a competent authority where the separation is necessary for the best
interest of the child.
(v) Civil Rights – Articles 13 – 17
 This includes the right to freedom of expression and freedom of thought
but qualified by parental rights and responsibilities, freedom of
association and to freedom of assembly, protection of privacy, right to
access to information.

(vi) Primary Parental Responsibility – Article 18

This involves the recognition that parents or guardians have primary
responsibility for the upbringing and development of the child.

(vii) Right to Protection – Articles 19 – 24

This includes requiring States to take all appropriate steps to protect a
child from all forms of physical or mental violence, injury or abuse,
neglect or negligent mistreatment, maltreatment or exploitation, including
sexual abuse while in the care of parents.

(viii) Right to Education- Articles 28,29

(ix) Right of Protection Against Exploitation (child labour, drug abuse,

sexual exploitations, trafficking ), Torture and Deprivation of Liberty –
Articles 32 – 39
This includes the child’s right to protection from various forms of
economic exploitation and sexual abuse, protection against torts or other
cruel or degrading treatment or punishment.

(x) Provisions related to Juvenile Justice- Articles 37, 40

2. PARENTAL RESPONSIBILITY - DEFINITION

Parental responsibility refers to the collection of tasks, activities and choices

which are part and parcel of looking after and bringing up a child. The Children’s
Act of Trinidad and Tobago defines parental responsibility as:
“All rights, duties, powers, responsibilities and authority which by law a parent
has in relation to the child and his property”.
Durity v Benjamin (Unrep) 30 July 1993 HC, T&T No. 1596 of 1993

The obligations which arise include:

 Duty to maintain;
 Duty to discipline;
 Duty to educate;
  Duty to protect;
 Choice of child’s surname;
 Determining child’s religious upbringing;
 Consenting to child’s adoption;
 Consenting to child’s medical treatment;
 Appointment of guardian for child, if necessary;

3. IS DUTY JOINT OR SHARED?

The considerations and historical evolution are different if the child is born in
and out of wedlock

A. Child born in wedlock

Original Position – Exclusive to Father

The father had exclusive parental responsibility for his children born in wedlock. This
responsibility included 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.
R v de Mannesville (1804) 5 East 221
R v Greenhill (1836) 4 AD&E 624
Re Agar-Ellis (1878) 10 Ch D 49

This exclusive right was eroded over time with the passage of legislation, firstly of the
Custody of Infants Act 1839 and thereafter the Matrimonial Causes Act 1857 and 1873,
the Guardianship of Infant Act 1886, the Custody of Children Act 1873, the cumulative
effect of which was the judicial and legislative recognition of the shared parental rights
of the mother.

B. Child born out of wedlock

Original Position-
At common law, the child born out of wedlock was regarded as fillius nullius or a child
of no one. Consequently, none of the legal rights and duties flowing from the
relationship of parent and legitimate child were accorded to him or his parents. Such a
child in law, was a stranger, not only to his parents, but to all other relatives including
brothers, sisters and grandparents.

It developed over time under equity that the mother had all the rights and duties which
flowed from parent to child to the exclusion of the father
Barnardo v Mc Hugh [1891] AC 388 HL
Re Carroll [1931] 1 KB 317
Thus the father of the child born out of wedlock (also called the putative father) had
basically no rights in respect of the child. Practically, this meant that the putative father
 Had no automatic right of guardianship, custody or access even when a
maintenance order had been made against him
 Could not obtain maintenance in respect of the child from the mother, whatever
her means, even if he was awarded custody
 His agreement to the child's adoption was not necessary unless he was granted
custody or had become the child's guardian by court order or appointment under
the mother's will
 His consent to change the child's name was not required unless he was granted
custody or had become the child's guardian by court order or appointment under
the mother's will
 His consent to the marriage of a child during the age of minority was not
required.

Other than rights of succession and obligations of financial support, the father of
a child born out of wedlock does not possess the same rights and responsibilities
as a father of a child born in wedlock except in the limited cases of Trinidad and
Tobago where legislation has conferred such rights which are subject to paternity
being established. This is discussed further below.

B. Current Position – Shared Responsibility

Child born in wedlock

Sec 4 TT Family Law Act

Child born out of wedlock

Sec 6 Family Law Act

Parental responsibility in respect of a child is now shared between two

or more persons and each of them may act alone and without the other
subject to circumstances where:
 Statute requires the consent of more than one person.
 It is incompatible with a court order.

Case of Change of Surname

Sec 5 TT Family Law Act

A change of surname is not generally allowed without joint consent. Also,
different considerations apply where the parents are/were married versus
unmarried at the time of birth of the child.
In every event, the court is concerned with achieving a result which is in the
best interest of the child. What is in the best interest of the child may change
as social attitudes change

Child born in wedlock

Re PC (Change of Surname) [1997] 2 FLR 730

D v B (Orse D) (Surname: Birth Registration) [1978] 3 WLR 573
Re B (Change of Surname) [1996] 1 FLR 791

Child born out of wedlock

Dawson v Wearmouth [1999] 2 WLR 960; [1999] 2 AC 308 at 324

Re W (A Child) (Illegitimate Child: Change of Surname) [2001] Fam 1
Re T (Change of Name) [1998] 2 FLR 620

Old Position
Re T (Orse H) (An Infant) [1963] Ch 238

TT Cases
Re Garcia, Sharon Lee TT 1997 HC 75
C.B. v C.A.M. TT 2005 HC 14
 Agreement to Adopt

Before an adoption can be made, the consent of persons with parental

responsibility must be obtained, unless the court otherwise orders.

4. PARENTAL RESPONSIBILITIES AND THE RIGHTS OF THE CHILD AND THE

4 Ps – PREVENTION, PROTECTION, PROVISION AND PARTICIPATION

General Considerations

In determining the rights of a child whether in relation to the father and mother
jointly or in relation to an outsider, the welfare of the child is accepted as the
paramount and overriding consideration, although the father’s parental
authority seemed for several years to be the supreme consideration. Today, as
recent case law indicates, the best interests of the child is shifting increasingly from
parent-focused to child- focused.

Re P (Infants) [1962] 1 WLR 1296

Re T (Wardship: Medical Treatment) [1997] 1 FLR 502 at p 514
Charlie Gard v UK [2017] 65 EHRR SE9
Re K D (A Minor) (Access: Principles) [1988] 2 FLR 139 at 141
Re Thain [1926] Ch 676
J v C [1970) AC 668

(i) Physical Care and Protection of the Child

The physical care and protection of the child is enforced through
legislative provisions and common law. In Trinidad for example, several
provisions of the Children's Act 2012 set out protections for children as
against their guardians. Some are:

Sec 4- Prevention of Cruelty to Children

Sec 5- Offences in relation to causing a child to beg or receive alms

Sec 9- Offences in relation to female Genital Mutilation

Sec 11- Abuse of children through prostitution

Part VI- Sexual Offences in relation to children

Part VII- Offences relating to Dangerous Drugs, Tobacco and Alcohol

Part VIII- Child pornography

Part IX- Provisions for the safety of Children

The extent of the authority and power of the parent or guardian in respect
of the physical protection of the child depends on the age and
understanding of the child.

Re Agar-Ellis supra
R v Senior [1899] 1 QB 283
Gillick v West Norfold and Wisbech Area Health Authority [1985] 3 All
ER 402 HL
(ii) Reasonable Discipline

This power extends to third persons to whom parental responsibility is

delegated. A third party includes the principal or persons delegated by
the principal in accordance with the Education Acts of the respective
jurisdictions.
See sec 4 TT Children's Act

Mayers v AG of Barbados et al BB 1993 HC 31

R v Hopley (1860) 175 ER 1027
R v Rahaman [1985] 81 Cr App 349
A v UK [1998] 27 EHRR 611
Re K: Local Authority v N and Others [2007] 1 FLR 399

(iii) Maintenance

This duty extends to step-parents who treat a child as a child of the family.

(iv) Education

Every person who has parental responsibility for a child or fulltime care of
a child has a responsibility to ensure that where the child is of compulsory
school age, he or she receives an efficient fulltime education. The
Education Acts of most jurisdictions provide for a compulsory age of
school attendance and the consequences of the failure or neglect of the
parent or guardian to ensure compliance.
See sec 76-84 of the TT Education Act on Compulsory School Attendance

Jenkins v Howells [1949] 2 KB 218

(v) Religious Upbringing – First Recognition of Children’s Rights

There is no legal obligation to raise a child in a particular religion or

indeed any religion. A parent or person exercising parental responsibility
has the right to determine the religion in which the child is brought up
and this right continues even where a child is placed under the care of a
local authority. The education acts and the guardianship legislation of the
respective jurisdictions reinforce the parental rights to choose or not
choose a religious upbringing/education for their minor child. The child
is however entitled to have his views considered.
 R v Barnardo (1889) 23 QBD 305
Re R (A Minor) 1992 Times 3 November CA; [1993] 2 FLR 163
Re Carroll [1931] 1KB 317
Re S (Access: Religious Upbringing) [1992] 2 FLR 313

The courts are generally reluctant to change the settled religion of a child.
The courts also do not discriminate between the comparative worth of
different religions

Re Carroll (1931) 1 KB 317 at 336

Hoffman v Austria [1993] 17 EHRR 293

Where feuding parents disagree on which religion the child should be

brought up in, the court would holistically resolve the matter in the best
interest of the child
D v R BS 2011 SC 72

Also, where the parents’ religion involves a risk of serious harm to the
child, an order of prohibition may be granted.

Re T (Minors) (Custody: Religious Upbringing) [1975] 2 FLR 239 CA

Re S (A Minor) (Medical Treatment) [1993] 1 FLR 376
Re O (A Minor) (Medical Treatment) [1993] 2 FLR 149
Re E (A Minor)(Wardship: Medical Treatment) [1993] 1 FLR 386

(vi) Medical Treatment and Parental Consent- “The Gillick Competent”

Minor

Gillick represents the destruction of parent’s rights and replacement with

parental responsibility. Parental responsibility terminates when the child
reaches the age of majority, but even then the child is subject to the Court's
parens patriae power.
 The parent or guardian has a duty to obtain or take steps to obtain
essential medical treatment for a child under 16 years. A child under the
age of 16 years in the UK may give valid consent to medical treatment
provided he has the requisite mental capacity.

 The Gillick Competent Child-The Test

Gillick v West Norfolk and Wisbech Area Health Authority and Another
[1985] 3 WLR 830; [1985] 3 All ER 402

 Basis of Parental Consent

F v Wirral Metropolitan Borough Council [1991] 2 FLR 114, [1991] Fam
69

 Best Interest Considerations and the Court as Parens

Patraie Re B (A Minor) (Wardship:Sterilisation)[1988] AC 199
Re B (Wardship:Abortion) [1991] 2FLR 426
Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 FLR 502 CA
Charlie Gard v UK [2017] 65 EHRR SE9

 Cases Post Gillick

Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11
Re E (A Minor) Wardship: Medical Treatment [1993] 1 FLR 386
Re W (A Minor) (Medical Treatment: Court's Juridiction) [1993] Fam 64 (CA)

 Consent –A Diminishing Parental Right

See e.g. Status of Children legislation consent for blood test by minors-
Barbados, Jamaica and Trinidad and Tobago

(vii) Contact

This is viewed as a basic right of the child, not the parent.

Re B (Minors: Access) [1992] 1 FLR 140
Re H (Minors) (Access) [1992] 1 FLR 148 CA
Re KD (A Minor) (Access Principles) [1988] AC 806
 M v M (Child: Access) [1973] 2 All ER 81 at 88

(viii) Child’s Surname

 Married Person – no rule of law that child is required to take
father’s name.
 Unmarried Persons – the child may take either parent’s name

(ix) Legal Representation

A parent has the right to act on behalf of a child in legal proceedings as
the child’s next friend or guardian ad litem unless it is established that it is
not in the child’s interest.

Re Birchall, Wilson v Birchall (1880) 16 Ch D 41 CA

(x) Consent to Marry

 For Whom Required – A child between 16 – 18 years parental

consent required;
 Dispensing with consent- e.g. sec 24 TT Marriage Act
 Court Order for Consent to Marry- e.g. sec 23 TT Marriage Act
 Position in Trinidad and Tobago in the case of Hindu, Orisa and
Muslim marriages.

(xi) Burial of a Child

The parent of a child has both a right and responsibility to bury their
deceased child.

See Clark v London General Omnibus Co. Ltd [1906] 2 KB 648 CA

5. DIVORCE AND PARENTAL RIGHTS AND RESPONSIBILITIES

Between Decree Nisi and Decree Absolute

Arrangements for the children - the best in the circumstances requirement.
Sebastian v Sebastian JM 1993 CA 25

6. THE POSITION OF THE UNMARRIED FATHER

 Other than rights of succession and obligations of financial support, the father of
a child born out of wedlock does not possess the same rights and responsibilities
as a father of a child born in wedlock except in the limited cases of Trinidad and
Tobago where legislation has conferred such rights which are subject to paternity
being established.

Re SM (A Minor) (Natural Father Access) [1991] 2 FLR 333 As

a general rule, to acquire these rights, the father must obtain:

(i) Agreement with the mother; or
(ii) An Order of the court ; or
(iii) Appointment as guardian on mother’s death:

In making an order in favour of the unmarried father, it is the child’s welfare and
not the father’s wishes that is paramount.
Re P (Parental Responsibility) [1997] 2 FLR 222
Re K (A Minor) (A Custody) [1990] 2 FLR 64
Re O (A Minor) (Custody: Adoption) [1992] 1 FLR 77
Re C and V (Contact and Parental Responsibility) [1988] 1 FLR 362

7. LEGAL DISABILITIES AND LIABILITIES OF A CHILD

(i) Contractual disability except in the case of the purchase of necessaries, or

apprenticeship contracts.

(ii) Testamentary Incapacity during minority.

(iii) Incapacity of administration whether on a testacy or an intestacy during

minority.

(iv) Liability in Tort

The parents of a child will be held liable if injury is caused to the plaintiff
in cases where:
 a parent has control of dangerous thing
 a parent failed to exercise adequate control or supervision
Mullins v Richards [1998] 1 All ER 920 CA
McHale v Watson [1966] 115 CLR 199
 Bebee v Sales (1916) 32 TLR 413
Donaldson v Mc Niven [1952] 2 All ER 691 CA

(v) Legal Proceedings – Gillick Competence

During minority, a child may not without leaving of the court, sue in his
name but may do so through a next friend or guardian ad litem
Re S (1993) Fam. 263
Re T (1994) Fam. 49

(vi) Liability for Crime

 Youngest child – incapable of committing a crime
 7 to 14 years – rebuttable presumption
 14 years and over –presumption of capacity
Walters v Lunt [1951] 2 All ER 645
C v DPP [1994] 3 WLR 888

(vii) Sale and Lease of Minor’s Property

Neither the minor nor the parent or guardian of the minor can sell
property belonging to the minor without a court order belonging to the
minor without a court order.

(viii) Giving Evidence – The Hayes Test and Unsworn Evidence

Depending on the jurisdiction, there are common law or statutory
prohibition and limitations to a child giving evidence in legal proceedings
whether civil or criminal.
In the case of Trinidad and Tobago, see:
Sec 13A TT Evidence Act
Sec 19 TT Evidence Act

R v Hayes [1977] 1 WLR 234 at 237

R v Highbury Corner Magistrate’s Court ex parte D [1997] 1 FLR 683
R v X, R v Y, R v Z [1990] Crim LR 515

8. THE CHILD REDEFINED

 A. Gillick v West Norfolk and Wisbech AHA

While the Gillick case [1986] AC 112, concerned the provision of contraception
services to a child under 16 without parental consent. The case is recognised
in its broader context for its examination of the rights of a parent and his or
her ability to discharge parental duties and the capacity of a child under 16
years to provide valid consent.

B. Consent and Refusal

(i) Competence seen as developmental concept.

(ii) Concurrent rights of determination and consent.

C. The Role of the Court

While there appears to be some uncertainty as regards the weight to be

attached to the decision making of the parent and child, the courts have an
overriding inherent jurisdiction to override parent, child and the medical
practitioner in the performance of its protective responsibility.
Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam. 11
Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64

TUTORIAL QUESTIONS

Question 1:

The concept of motherhood and fatherhood are legal as well social constructs.

Question 2:

“The paramountcy of the welfare of the child is said to be the golden thread that runs
through the law relating to children. However, the application of this principle is
neither practical nor just in some situations.”

Discuss.
Question 3:

Mary is 16 years old and views herself as a boy in a girl’s body. She consults a surgeon
who consents to remove her breasts as the first step in having a sex change. Her parents
want to stop the procedure, but she is adamant on going ahead.

(i) Advise Mary.

(ii) Would it make a difference to your answer if Mary wanted to have breast-
reduction surgery because she is self-conscious about having large breasts
and she is frequently teased by men on the street who assume that she is
much older?

Question 4:

John and Mary marry in 1999. In 2000, Mary gives birth to Junior. In 2003, the
relationship came to an end and Mary divorced John. John begins making child
support payments to Mary, who has legal custody of Junior who lives with her and her
live-in lover, Eric.
Mary now tells John that Junior is not his child. She changes Junior’s surname to that of
her lover’s surname and prevents John from having contact with Junior.

Junior if very close to John, regards him as his father, hates his new name and refuses to
speak to Eric. He insists that John is his father.

Mary decides that the best thing to do is to apply for a declaration of paternity. John says that
he will not consent to any paternity test. Junior begs his mother not to go ahead with it. Mary is
determined to settle the matter once and for all.

How will the court rule?