PR with a low profile

Hidden away in Schedule 2 to the Children & Families Act 2014 are some amendments to s12 of the Children Act 1989 which not everyone has yet noticed.

I don’t mean that child arrangements orders have replaced residence and contact orders (If this IS news to you please go directly to High Holborn / Chancery Lane and hand in your practising certificate TODAY). No. It’s a little nugget with potentially significant ramifications, albeit probably in only a few cases.

Because as of 22 April 2014 a person who has the benefit of a “spending time or otherwise having contact with” CAO can potentially obtain PR.

New S12(2A) Children Act 1989 now gives the court a discretion to grant PR for the life of the CAO.

But when is this power likely to be exercised? What mischief is it aimed at?

This provision was in the original Bill as laid before Parliament, rather than a late amendment, and the explanatory notes to the original Bill say only this:

110.New subsection 12(2A) enables the court to give parental responsibility to a person who is not a child’s parent or guardian, in cases where a child arrangements order provides for the child concerned to spend time with or otherwise have contact (but not live) with that person. As for subsection 12(2), parental responsibility is limited to the duration of the relevant provision.

111.As a result of new subsection 12(2A) and new subsection 10(5)(d) the entitlement to apply for a child arrangements order will be extended. New paragraph (d) of section 10(5) of the Children Act 1989 (see paragraph 5(3)(c) of Schedule 2) would provide that a person who has parental responsibility by virtue of provision under new section 12(2A) is entitled to apply for a child arrangements order. The Government considers that the extension of entitlement that would be effected by new section 10(5)(d) is narrow because there are likely to be only a few cases in which the court considers it appropriate to give parental responsibility to a person with whom a child spends time or otherwise has contact but does not live.

Not massively illuminating I think you’ll agree. But it does flag one aspect of the significance of this – those with the benefit of such PR represent a new class of people who are entitled as of right to apply for a s8 order.

And if you note the wording – this does not just grant PR for those who are having face to face contact (sorry “spending time with”). It also gives a power to grant pr to those who are “otherwise having contact”.

Thinking back to the period before the Bill was launched there was much fuss, post-Norgrove report, about removing the requirement for grandparents to seek leave before applying for contact. Norgrove flip-flopped. The Bill was silent. Except I now wonder if this was a little squeak in their direction. Of course a grandparent would still need leave to get to the point where they no longer needed leave (if you get me), but it would prevent the need for repeated leave applications. Not of course that we are supposed to be in an era of repeated s8 applications, but this may well be one side effect of the fix ’em up and discharge ’em A&E approach to private law that we are now enjoined to adopt.

So, I confess I’m not entirely sure what the drafters were getting at, and there appears to have been no debate about this provision in Parliament (based on my trawl of Hansard), which reminds me that frankly, Parliament had bigger fish to fry.

Leaving aside Parliament’s intentions, it could apply to a number of scenarios – to grannies struggling to have contact with their grandchildren in the care of their former son or daughter in law, to parents who for one reason or another fall through the cracks between the assisted conception and other legislation and are not treated legally as parents…for respite carers I suppose (e.g. Aunties who have the children stay with them in Scotland for the six week summer hols or family members who step in cyclically when a sole primary carer’s mental or physical health declines).

What is most interesting is how the court will apply or draw upon previous case law, which hitherto relates mainly to fathers. In some cases there will be an easy analogy to be drawn, but in most cases falling within this system the waters are untested as far as any test for the exercise of this discretion is concerned. Will it be commitment, motivation and bond? If that is enough for a non-parent frankly any old joe blogs could secure PR.

I am very interested to see how this pans out – it may just lie dormant for a while before any case arises or it may wither and not be used at all. But it could produce some interesting case law, and some challenges for judges dealing with not one but possibly three litigants in person and a bit of novel law.

7 thoughts on “PR with a low profile

  1. Does that mean if a child is living with a resident parent and new partner (other parent non resident parent or ‘contact’ parent), new partner can be awarded PR, and in effect resident parent and new partner, can out PR non resident parent by 2 to 1 on decisions that impact on child? I would also assume this would give power to proceed with new partner adopting child and resident parent and new partner seeking name change? This I do not like.

    • No, it doesn’t Anon. There are already provisions enabling a step-parent to obtain PR, and the court has always been able to make a joint residence order (now child arrangements order) naming both adults in the household and thereby conferring PR on a partner (although it is rarely necessary in my experience).
      There is no change to these aspects of the law – the bit I was highlighting is a power to award PR to someone the child is NOT LIVING WITH.
      And more importantly the concept of “out-PRing” by numbers is not really what PR is about. Nobody’s PR is diluted by the fact someone else has PR. PR confers a responsibility to consult with other holders of PR and a right to be consulted and involved in big decisions. But holders of PR don’t get one vote each as it were. PR operates more on a veto basis in areas like foreign travel where a parent can (except in certain circumstances) be unable to lawfully go abroad with a child if one other holder of PR objects (a child arrangements or specific issue order can permit this in the absence of consent). The same goes for change of name – a non-resident parent who holds PR and who objects to a change of name can’t be outvoted on the issue. If they object the other parent will have to obtain court approval (although this does not always happen in practice before a de facto change of name).
      And PR doesn’t really have any bearing on the merits of an application for adoption by a new partner (which in any event is quite rare).

      • Thank you for your reply which is very informative. Can I ask that as new partners (step parents) can now acquire PR for a step child or child of the family by either entering into a PR agreement or by asking the court to make a PR order (Form C(PRA2)), I assume a PR agreement would be made by consent, simply between resident parent and new partner, rather than a need to make a PR order via the court, however if any PR agreement was sort would the non resident parent (with PR) receive notification this was happening/has happened or indeed can any objection be made. If then resident parent and new partner having been granted PR, then split up, does the step parent, still retain PR?

        • No. Assumption wrong. See s4A CA 1989. Every parent with PR must agree and a step-parent is a spouse or civil partner of a parent (not a cohabitee). Only the court can grant step-parent PR if another parent with PR doesn’t agree. It can only be done over the head of the other parent if they don’t have PR.

  2. PR…. not worth the paper its written on anyway. Local education authorities, school and GP’s can and do ignore this regardless of law and their own protocols.
    I’m a dad with no contact, I have PR, I’ve tried exercising my PR and people just shut the door in your face as such.

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