1. INTRODUCTION

In ‘Parental Responsibility for Children in Care’, John Eekelaar stridently set out his view that the clause in the then Children Bill providing that the parents of a child in care would share parental responsibility with the local authority (subsequently enacted in section 33 of the Children Act 1989) needed to be amended. A child is in the care of the local authority because the parents have shown themselves unable to fulfil their responsibilities to care for the child, such that the local authority, on behalf of the State, must take over those responsibilities. In John Eekelaar’s view, while a duty upon the local authority to consult the parents would ensure that the local authority used its responsibility fairly with respect to the parents, shared responsibility required the parents to be treated as equal rights-holders. In this chapter, I examine the case law that followed on the scope of section 33, focused upon two issues concerning children’s health: vaccination and decisions to withhold or withdraw medical treatment. I do so through the concepts of responsibility which John identified in his article, ‘Parental responsibility: State of nature or nature of the state?’, identifying the responsibilities of the public authorities.

2. ‘PARENTAL RESPONSIBILITY: STATE OF NATURE OR NATURE OF THE STATE?’

In 1991, before the Children Act 1989 was in force, the Journal of Social Welfare and Family Law published what was to become a seminal article by John Eekelaar on the concept of parental responsibility, which was introduced into English Law when the Act became law that October. In that article, ‘Parental responsibility: State of nature or nature of the state?’, John examined two conceptions of parental responsibility employed by the Law Commission in their working paper reviewing child law. The first, as had been employed in Gillick, was that parents had rights or responsibilities to enable them to fulfil their duties to their child, meaning that the latter term was more appropriate than the former. The second conception referred to the responsibility for children being primarily that of parents, rather than the State. Respecting the freedom of parents to care for their child as they wish, the role of the State is to support parents to fulfil their responsibilities, intervening only when parents are unable to do so.