Introduction
The question of what the ‘new generation’ should ask their parents is a philosophical, rather than a legal, inquiry. However, framing this question within the legal context of England and Wales provides a novel way to explore the fundamental nature of the parent-child relationship in law. To be the ‘most important’, a question must relate to the most significant legal obligations a parent owes to their child. This essay will argue that the most important legal question a child could ask a parent is: "How are you using your parental responsibility to protect and promote my welfare?" This single question encapsulates the core of modern English family law concerning children. It moves beyond a parent's personal or moral choices to the specific, legally defined duties they hold. This essay will first define the legal concept of parental responsibility. It will then explain how this concept is intrinsically linked to the paramountcy of the child's welfare under the Children Act 1989. Finally, it will contrast this question with other potential inquiries, such as those concerning inheritance or digital privacy, to demonstrate its superior legal importance.
Understanding Parental Responsibility
The foundation of the legal relationship between a parent and child in England and Wales is the concept of ‘parental responsibility’ (PR). Before the Children Act 1989 (CA 1989), the law spoke of ‘parental rights’, a term that suggested a proprietary attitude towards children. The shift in terminology to ‘responsibility’ was deliberate and significant. As Lord Mackay described it, the new law aimed to state that "parental responsibility… is a responsibility for the child’s welfare which is to be shared between parents" (Hansard, 1988).
Section 3(1) of the CA 1989 defines parental responsibility as "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". This is not an exhaustive list, but a broad concept encompassing the practical and legal tasks of raising a child. This includes duties to provide a home, protect and maintain the child, ensure they are educated, consent to medical treatment, and manage their property.
Crucially, PR is a concept of duties owed to the child, not rights held over the child. As the legal academic Andrew Bainham has noted, PR is more akin to a trust, where the parent acts as a fiduciary for the child's benefit (Bainham, 1999). A child’s mother automatically has PR, as does a father who is married to the mother at the time of the child’s birth (CA 1989, s 2). Unmarried fathers and other significant adults can acquire PR through various legal mechanisms, underlining that it is the responsibility for the child's care, not simply the biological link, that the law values. Therefore, a child asking a parent how they are exercising their PR is asking them to account for the core set of legal duties that define their role as a parent.
The Primacy of the Child's Welfare
The exercise of parental responsibility is not a matter of absolute discretion. It is governed by a single, overriding principle: the child's welfare. Section 1(1) of the CA 1989, often called the ‘welfare principle’, states that when a court determines any question with respect to the upbringing of a child, "the child’s welfare shall be the court’s paramount consideration".
While this provision is a direction to the courts, it is widely accepted that it also defines the manner in which parents should exercise their PR. The law expects parents to act in the best interests of their children. If parents are in dispute, a court will step in and make a decision based explicitly on what is best for the child, not what is 'fair' to the parents. The court's decision-making process is guided by the ‘welfare checklist’ in section 1(3) of the CA 1989, which includes considering the child’s ascertainable wishes and feelings, their physical and emotional needs, and the effect of any change in circumstances.
Therefore, when a child asks, "How are you promoting my welfare?", they are essentially asking their parent to justify their actions against the very standard a court would use. They are invoking the central principle of the entire legal framework designed to protect them. This question forces a parent to consider whether their decisions about education, health, living arrangements, and emotional support align with the child’s best interests as defined by law. This makes it the most fundamental and powerful legal question a child could pose, as it holds the parent to the highest standard known in English family law.
Evaluating Alternative Questions
To establish that the question of welfare and PR is the "most important," it is useful to consider and dismiss other potential questions a child might ask.
One possible question relates to financial security: "What provision have you made for me in your will?" This concerns inheritance and succession. While important for a child’s future, this question has a weaker legal basis during a parent’s lifetime. English law upholds the principle of testamentary freedom, meaning a person can, in general, leave their property to whomever they wish. While a child can make a claim against an estate for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, there is no guaranteed right to inheritance. The parental duty is to maintain the child during their minority, not to ensure they inherit wealth. Therefore, a question about inheritance is directed at a parent’s discretion, not a fundamental, enforceable duty concerning the child's immediate welfare.
A more contemporary question might be: "What have you shared about me online and how will you protect my digital privacy?" This is an increasingly significant issue, touching upon the child’s right to a private life under Article 8 of the European Convention on Human Rights, and issues of data protection. Cases of parents over-sharing information about their children, a practice known as 'sharenting', raise valid legal and ethical concerns about consent and the creation of a 'digital footprint' the child did not choose (Steinberg, 2017). However, the law in this area is still developing and is less established than the core welfare duties under the CA 1989. While a child's privacy is a component of their overall welfare, the duties to provide a home, education, and protection are arguably more foundational. The question about privacy, while important, can be seen as a subset of the broader question about how a parent is protecting the child’s overall welfare in the modern world.
Conclusion
In conclusion, when the abstract question of what the ‘new generation’ should ask parents is placed within a legal framework, a clear answer emerges. The most important question is a challenge to parents to account for their exercise of parental responsibility in promoting the child’s welfare. This question is fundamental because parental responsibility is the central legal concept governing the parent-child relationship, and the child's welfare is the paramount principle that guides its application. It is more significant than questions about inheritance, which relate to parental discretion rather than a core duty, and it provides a broader, more established framework than the important but still developing questions around digital privacy. By asking how their welfare is being secured, a child is not merely seeking love or reassurance; they are invoking the fundamental legal bargain that underpins modern family law, reminding parents that their role is one of profound and legally defined responsibility.
References
Bainham, A. (1999) 'Parental Responsibility and the Locus of an Indefinable Concept', Cambridge Law Journal, 58(2), pp. 256-259.
Hansard (1988) HL Deb 06 December 1988, vol 502, col 490. Available at: [https://api.parliament.uk/historic-hansard/lords/1988/dec/06/children-bill-hl](https://api.parliament.uk/historic-hansard/lords/1988/dec/06/children-bill-hl) (Accessed: 15 May 2024).
Steinberg, S. (2017) 'Sharenting: The Dangers of Oversharing on Social Media', The University of Florida Journal of Law & Public Policy, 29(3), pp. 423-448.
Legislation
Children Act 1989
Inheritance (Provision for Family and Dependants) Act 1975
Conventions
European Convention on Human Rights 1950
