Is it the end of parental authority?

Is it the end of parental authority?

What is parental responsibility? Is it the same as parental authority? Is it the equivalent of ownership? Do child rights eliminate parental responsibility?

Parental responsibility refers to "all the rights, duties, powers and responsibilities that by law a parent of a child has in relation to the child" (Elizabeth A. Martin, Jonathan Law, A Dictionary of Law, p. 391).

According to articles 7 and 3B of the Maltese Civil Code, the parents have the obligation of taking care, maintaining and instructing and educating their children according to the child's abilities, natural inclinations and aspirations. This article does not merely delineate parental duties but takes a step further in acknowledging that parental duties should be carried out in accordance with the child's aptitudes, leanings and ambitions.

However, is parental responsibility the same as parental authority? Are they interchangeable?

The term parental authority is an outdated concept stemming from olden times where parents were presumed to have power and a sense of ownership over their offspring, just as they had over their animals. In fact, nowadays, with the recognition and acknowledgement of children's rights, the concept of a parent having dominion over the child's life is seen as being obsolete. Nowadays, the term that ought to be used to designate the rights and duties owed by parents towards their children is referred to as parental responsibility.

But, one might ask: What is in a name? Isn't it just a name change to the same parental rights? No. In the past, children had no say in familial matters and parental authority was exercised with no say to the child's wishes.

A case in point is the old English case of Re Agar-Ellis v Lascelles (1883), where the father, a Protestant, made the children wards of the court when they refused to go to a Protestant church because they were Catholic just like their mother. He also prevented the mother from taking the children to any Catholic ceremonies and severed any communication the children had with their mother. His 17-year-old daughter wanted to practise her Catholic faith, thus going against her father's wishes and parental authority. The court ignored the daughter's wishes as it believed that a father had an absolute paternal right to control his children.

The world has moved away from such drastic parental measures. That is why parental rights and duties are moving from being referred to as parental authority to being referred to as parental responsibility. More than parental authority, parents have responsibilities towards their children. Children are individuals in their own right and should be treated as such. No one individual has authority over another individual but everyone has responsibilities towards each other and parents have the responsibility to see that their children grow into responsible and mature adults.

Parental responsibilities are not static but change and adapt as the child grows older. A parent's responsibilities towards a child lessen as the child grows older, that is, the level of responsibility a parent has towards a two-year-old cannot be measured at the same level as the responsibility owed to a 17-year-old.

In fact, in Hewer v Bryant (1969), Lord Denning MR stated that paternal right "is a dwindling right which the courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice".

This is reflected in the English case of Gillick v West Norfolk Wisbech Area Health Authority (1986), where Lord Scarman said that "... Parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision".

These decisions do not mean that parental responsibility stops but it means that as children grow older the level of responsibility diminishes, which, in fact, is a natural progression.

Child rights do not eliminate parental responsibility. Parental responsibility does not conflict with children's rights. Indeed, article 5 of the United Nations Convention on the Rights of the Child reads as follows: "State parties shall respect the responsibilities, rights and duties of parents... in a manner consistent with the evolving capacities of the child, appropriate direction and guidance..." Therefore, even the Convention does not use the term parental authority but parental responsibility because, in fact, parents have responsibility towards their children.

Children are not the property of their parents; therefore, the term "authority" is redundant. The Convention acknowledges that children's capacities are evolving and increase as they grow up. Thus, parental responsibilities should be exercised in accordance with the children's evolving capacities.

The writer is a lawyer and a published author with a special interest in family law and child law.

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