Introduction
Child law is intended to protect the rights of children, especially when danger or suffering are suspected. While Tim James and Karen James Marley’s parents, Karen believes there are reasons for her nine-year-old daughter to abstain from meetings with her father. The decision was influenced by the social media posts in which the minor was seen smoking, having access to alcohol, and posing inappropriately despite her father’s supervision. The mother believes these are adequate reasons for reporting Tim to social services, disregarding Marley’s refusal to follow up with her mother’s request to stop seeing her father. According to current UK law, legal advice is necessary to allow social services to react to the situation so that the child is protected.
Social Services
Social services are to ensure that the adults and children who are vulnerable to risk are protected. In this situation, Marley, who is under the age of 10, has been seen smoking and having empty alcohol bottles in the social media posts uploaded online. In this case, the two parents are separated, yet the Children Act 1989 applies to both. The act is intended to ensure children’s safety by allocating duties to parents, relevant entities, and organisations. While Tim and Karen have not been married, Tim is also responsible for the child if he is registered on the birth certificate, has a court parental responsibility order, or is granted arrangements in regards to the child’s residence. The Act also allows social services to intervene due to the mother’s report of suspected child endangerment. The Children Act 1989 is based on the premise that a child is best protected in a family with both parents without having to resort to legal proceedings. This, however, does not mean that child services are not to intervene in case the minor is at risk. There are multiple options that child services may apply. First, an emergency order would allow for the child to be removed in case emergency protection is needed. This, however, is not the case for Marley since while the situation is to be addressed, the minor is not in immediate danger requiring drastic measures.
On the other hand, child services may intervene with the family in terms of mitigating the conflict situation and facilitating a dialogue between the two parties. Needless to say, this does not imply that the report is to be ignored and that the mother’s request is invalid. In case the dialogue is impossible and the parties cannot find common ground, child services are to issue care proceedings. Thus, the party who wrote the report, hence, the mother, can testify in court in regards to the evidence of child neglect and endangerment. Child services, in this case, are to remain objective and have the child’s interest at heart. If the minor is assessed to be in an unsafe environment, child services cannot take the child away to decide who the child is to live with without a court order. As a result, protection services are to examine the situation, evaluate the risks and danger, and ensure the minor is not under immediate threat. Based on the notion that sufficient harm is attested, the services are to cooperate with the police for the urgent removal of the minor from a dangerous environment. In this situation, the father’s views do not restrict the daughter in regards to tobacco, alcohol, and inappropriate social media posts. However, there have been precedents in which courts have decided to restrict such parental practices and consider the child’s welfare as paramount even based on circumstances in which harm was less obvious.
An example is J v C, in which the child was to stay with the English foster parents instead of returning to Spain to birth parents since the care was more appropriate. However, certain precedents show courts favouring the children in regards to their decisions. Re Roddy is the case in which the court decided that a minor’s judgement in whether personal details are to be made public remains for the minor to decide. This implies that the minor has a say in what content to share and what to keep private. However, it is important to mention the the case illustrated prior was in regards to a 17-year-old. It is certain that the father’s views shall not interfere with the decision of social services or the court. The social workers are to review the case due to the report, which is exemplified in Section 26 of the Children Act 1989. Moreover, they are to gather evidence-based on section 47 of the Children Act 1989 and follow up with a court application if the danger has been established.
Threshold Criteria
The threshold criteria are the evidence and facts that are to be proven by the social services in order for the court to consider making the Care and Supervision Order. Thus, several aspects need to be taken into consideration for the court to deem the case plausible for interference. The threshold criteria are illustrated in Section 31 of the Children Act 31. If the authorities are to prove the situation is to be assessed in court, the court must agree that the child has already suffered and is likely to suffer harm. Moreover, the vulnerability to harm can be attributed to the care they are receiving or the lack thereof. However, proving this can be challenging, as exemplified in the case Webster v Norfolk CC. The children were removed from the family after suspected abuse. Yet, it was later revealed that the signs of abuse occurred due to a medical condition rather than the violent behaviour of the parents. In this case, while the signs illustrated an abusive household, evidence proved otherwise, yet it was too late since the children were rehomed and adopted into new families.
Moreover, harm can be interpreted in multiple ways, as referred to in the 1999 residence order. In this case, the court deemed the mother and stepfather as non-threatening to the child despite the naturalist beliefs, which means they were naked in front of the children. Thus, the threshold may have been met since being naked in front of minors can be interpreted as indecent behaviour or even sexual abuse. However, every situation requires a unique approach, which is why the threshold criteria, while well-established, are to be assessed based on every case in particular.
In Marley’s case, the authorities are to prove that the child is in danger and has experienced hardship due to the care provided by the parent under suspicion, in this case, the father. It is certain that Marley did not acquire the cigarettes and alcohol on her own but was provided with them by her father. Section 146 from the Licensing Act 2003 prohibits the sale of alcohol to people under the age of 18. Moreover, it is essential to mention that the father was aware of the social media posts and encouraged the minor daughter to upload such content. Thus, it is safe to assume the alcohol and cigarettes were supplied by the father or were in the residence when the child was there. While having these goods is not a punishable offence if the person is older than 18, allowing minors to access them imposes danger and puts them in a vulnerable position.
The fact that the father was aware of the actions of the daughter encouraged social media use and saw the posts in which the daughter was smoking exemplifies how the care is either inefficient or inadequate. Smoking and alcohol use is dangerous for adults, and, needless to say, the physical effects are even more harmful to children since they are not fully mentally and physically developed. This is why it is prohibited to sell tobacco and alcoholic products to underage people. Individuals do not yet have the mental capacity to make rational decisions on how to approach highly addictive substances. Not only do they damage their physical health, but they are also not ready to mentally decide whether smoking or drinking is optimal or not. Thus, the parent’s obligation is to shield minors from such negative aspects. In this case, Tim James failed to do so, causing the mother to deem the daughter’s behaviour an argument for restricting visitations from the father. Tim’s negative influence has caused Marley to behave inappropriately, and posting the episodes online illustrates such habits to be acceptable in Tim’s overview. Based on the threshold criteria, the child has to wither currently suffering hard or is to likely experience it.
The harm can be attributed to inadequate behaviour, such as smoking and consuming alcohol, exemplified by the fact that tobacco and alcohol are prohibited from being sold to minors. Moreover, the behaviour is to be attributed to the care provided by a parent. While Tim and Karen have not been married, he is Marley’s parent based on the fact that they partially share residency, and Tim’s involvement in his daughter’s life is prominent. Thus, since smoking and drinking were only present when Tim was in charge of the care, and his reaction was one of amusement to the situation, it is inevitable that inadequate care has led to such results. Thus, the threshold criteria for the court to consider the Care and Supervision Order has been met.
Parental Responsibility
Parental responsibility is a concept that illustrates the definition of the parents and the responsibilities a parent has towards the child. Thus, it underpins the relationship between the minor and the person responsible for them. Based on the Children Act 1989, under section 3, the definition highlights the rights, obligations, duties, and privileges over a child and his property. There are, however, several concepts that are to be considered when it comes to the person who is granted these responsibilities. The mother automatically becomes the parent after birth. However, the father acquires these rights under specific circumstances. First, this occurs when the parents are legally married. However, there are other options in case the parents are not married. The father may gain parental responsibility if he is registered on the birth certificate, enters an agreement with the mother, obtains the parent status through court, is granted residence arrangements for the child, is a guardian, or has adopted the child. The parental status is crucial when it comes to deciding on significant aspects related to the child’s upbringing.
An example is the 2000 case in which the Muslim father was not allowed to decide on the child’s circumcision without the permission from the wife. Hence, the court decided that a parent is not always entitled to make significant health-related decisions that may harm the child without the consent of the spouse. Thus, parental responsibility granted either through marriage with the birth mother or the other options mentioned earlier is essential in establishing the relationship with the child, yet it does not imply the lack of participation of the other party. However, in this case, Karen and Tim were not married when Marley was born. The lack of marriage may be a limitation, as exemplified in the 2011 case in which two parents who applied for services from a surrogate could not legally prove their parental rights due to a lack of documentation. The spouses allegedly had an oral agreement when it came to splitting property after the end of the relationship, a deal that was not deemed credible in court. Thus, oral contracts do not hold significant weight when it comes to legal proceedings unless both parties testify they are valid. Since it is unknown whether Marley’s birth certificate has information about Tim as her father or if the father has acquired parental responsibility in other ways, Karen is supposedly the only parent with parental responsibilities. However, the fact that Marley spends alternate weekends and half of the school holidays with her father may be considered a reason for duties to be granted.
If Tim were to acquire parental responsibility, there are several measures that can be taken. First, he may enter a parental responsibility agreement with the birth mother, Karen. The results are likely to be negative. Hence, the option is not plausible. Since the mother herself reported Tim and seeks Tim to not have access to Marley, the agreement is not going to be accepted by her. Thus, other options are to be considered in order for Tim to legally become a parent. Another option is obtaining the parent status through court. This is more likely since Tim has proof that he is an active part of Marley’s life, as exemplified by the residency agreements between him and his former partner, Karen. Thus, the choice is plausible if the court decides Tim has been involved in Marley’s upbringing for the last nine years and is fit to be considered a parent. Another likely option that may lead to Tim being granted parental responsibilities is him being legally granted residence arrangements. As mentioned prior, Marley lives with her mother yet spends certain weekends and school holidays with her father. Thus, the fact that the father partially lives with the daughter is undoubtable. Becoming a guardian, which would also lead to Tim acquiring parental responsibilities, is not likely to occur since the primary caregiver is Karen. A guardian is more likely to be a status that grandparents or other family members may be granted in parents cannot provide the necessary care, which is not the case for Marley and her mother. Last but not least, adopting Marley is also not likely to happen despite the status of a parent that follows. Adoption implies the mother’s agreement to the procedure, which is not plausible due to the conflict situation and the mother’s desire to stop Tim from seeing his daughter.
Private Law
Marley’s case is a private law one since the court case is between two individuals trying to resolve a dispute followed by a disagreement on the upbringing of the child. Section 8 in Children Act 1989 implies that private law is to resolve conflicts regarding contact orders, prohibited step orders, residence orders, and specific issue orders. Tim can apply private law to resume contact with Marley by using a contact order. Based on this premise, the mother is to allow communication with Marley in terms of visits, staying with her father, and phone conversations. The court is to consider the daughter’s desire to continue communicating with her father and disapproval of the mother’s request.
An example is a case in 1979 in which an unmarried journalist had to adopt her own daughter since there was no legal bond if a marriage was not present. The bond between mother and daughter allowed the court to favour the mother. In case the court considers the matter, the power it can exercise can ensure the father and daughter can continue being in contact during both physical meetings and online communication.
Another Section 8 order that Tim can establish is a residency order. Hence, private law allows Tim to ask for Marley’s residency to be determined by the court. Now, the child primarily lives with her mother and visits her father on certain weekends and half of the school holidays, yet the agreement appears to be an oral one between Karen and the father. Thus, if Tim manages to prove that the agreement did, in fact, take place, and Marley stays with him occasionally, the residence order may legally allow him to have permission to spend time with his daughter on particular weekends and school holidays. Tin can also apply for complete residency order, yet the result is not likely to be positive.
An example is the 2009 case, in which the father was able to provide good enough care, and the court decided in favour of the grandmother who could provide excellent care. Thus, the court is to consider that Marley already spends weekends and holidays with her father. Hence a residency order is plausible. As a result, it is in the court’s power to ensure that Tim cannot be denied the ability to have Marley for the weekends and school holidays agreed upon.
Alternate Methods
Resorting to a court hearing is not the only solution to Marley’s case. The parents, Tim and Karen, can come to a mutual agreement on the visitations and contact with Marley. First, it is important to consider the children’s wishes. While Marley is nine years old and cannot make decisions for herself, the court is to consider her opinion. A mutual agreement can be achieved without the involvement of the court. For example, mediation is a form of procedure that can help avoid the court’s involvement. A third party can be invited who can be impartial and objective when it comes to the conflict. The mediator can assess the situation, offer consultations, and develop a plan for visitations and parental responsibilities. For example, the father is not to have cigarettes and alcohol at his residence when the daughter is visiting, a solution that can mediate the initial issues. An example of how parents may negatively influence children with their beliefs is the 2012 case. The court decided in favour of the less religiously strict mother and not the father, who was a Hassidic Jew. Using mediation would lead to fewer negative consequences for the father since the parties would agree on which aspect of their religion the child is to follow. Another possible solution is collaboration, in which both parties hire mediators to avoid bias. This is especially crucial for Tim since he has to avoid being suspected of harassment. For example, DPP v King exemplifies a case in which the person in question was performing actions deemed as harassment despite violence not being involved. Social services may facilitate such agreements since the Children Act 1989, Section 17, mentions the regard of the child and both parents when the services are to be involved.
Moreover, Section 34 mentions courts being able to refuse contact between the child and parent, which implies that Tim may not be able to see or talk to his daughter. This also illustrates that court proceedings are not always the most effective ways of resolving conflicts. This is especially significant since the minor herself disagrees with Karen on her decision and is interested in continuing to be in contact with the father. While his methods are harmful to the child, a prophylactic discussion with social services may change his mind.
Conclusion
The notion of parenting and parental responsibility is crucial when it comes to deciding on the child’s upbringing. This is especially essential in case the parents are not in a legal marriage and were not when the child was born. Karen’s decision to limit the contact between Marley and Tim is justified since Tim’s behaviour cause harm to their daughter. However, Tim may apply to acquire parental responsibilities by proving to the court that the child’s residency is partial to him. However, avoiding court proceedings may be an effective option to minimise the harm both to the parents and the child. Thus, a plausible solution would involve hiring a mediator and having an objective third party helping with the arrangements. Either way, social services are to be applied for the sake of the children and the parents.
Bibliography
Statutes
The Children Act 1989
The Licensing Act 2003
Cases
DPP v King [2000] FL 85
J v C [1970] AC 668
Marckx v Belgium [1979] 2 EHRR 330
Re B (A Child) [2009] FL 114 (UKSC)
Re G (Children) [2012] FL 130 (EWCA)
Re Roddy [2004] FCR 481
Re TT [2011] EWHC 33 (Fam.)
Re W [1999] FL 113 (EWCA)
Webster v Norfolk [2009] FL 145 (EWCA)
Textbooks
Herring J, Criminal law: Text, cases, and materials (Oxford University Press 2012)
Family law: A very short introduction (Oxford University Press 2014)