Caring across borders: The UK’s Homes for Ukraine scheme and the global nature of parental responsibility
The Homes for Ukraine scheme, also known as the Ukraine Sponsorship scheme, launched on 14 March 2022 and since its inception has resulted in 168,900 visas being issued to Ukrainian adults or families to live with UK sponsorship households or with adult relatives.
Under the scheme, a child under the age of 18 is able to travel to the UK without a parent, and without a plan to join a parent in the UK in order to live with a sponsor family or adult relative - but what does this mean in terms of decision making for the child and the exercise of parental responsibility?
Parental Responsibility
Parental responsibility is defined in Section 3(1) of the Children Act 1989 as being “all the rights, duties, powers and responsibilities and authority which by law a parent of a child has in relation to the child and his property.”
A parent will automatically have parental responsibility for their child if they are:
- The child’s biological mother;
- The child’s biological father who is married to, or in a civil partnership with, the child’s mother, or is named on the child’s birth certificate;
- Second female parents who were married to, or in a civil partnership, with the biological mother at the time of conception.
Parental responsibility can also be obtained if it is not automatically acquired for example an unmarried father can be named on the birth certificate of the child, or a stepparent can be granted parental responsibility by entering into a parental responsibility agreement if certain conditions are met.
Parental responsibility cannot however be transferred, but decision making for a child can be delegated by the parent to another adult who has care of the child. Where decision making is delegated to another, the parent still retains their parental responsibility and remains responsible for their child.
Delegation of caring responsibilities under the Homes for Ukraine Scheme
Where a child travels to the UK without a parent under the Homes for Ukraine scheme, the parent is required to provide their consent. A consent form is completed declaring that as the child’s parent, they are responsible for their child and that it is in their child’s best interest to travel to the UK to live with another adult relative or the sponsor. Within this form, the child’s parent is required to grant day to day caring responsibilities for their child to the adult relative or sponsor with whom the child will live – this includes the ability to make decisions about the child’s medical treatment and educational needs and makes the adult relative or sponsor financially responsible for the child whilst they continue to live in the UK.
To ensure that the adult relative or sponsor is best placed to look after the child, the parent must have had a conversation around any specific needs and vulnerabilities of their child and be satisfied that these needs can be met. The parent is able to end the sponsorship agreement at any time by notifying the sponsor. However, this raises the question of how this affects parental responsibility for the child whilst the child resides in the UK?
Whilst decision making for the child can be delegated, parental responsibility is not affected . Adult relatives or sponsors who agree to sponsor a child under the scheme will not acquire parental responsibility by virtue of the consent form – the parent is simply informally agreeing to the adult relative or sponsor making day to day decisions in the child’s best interests.
Children’s views on delegation of responsibilities
In the case of older children, or young people travelling to the UK, they may be legally competent to make their own decisions regarding medical treatment. This is known as a child being “Gillick competent” from the landmark case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
Gillick competence is defined as:
“whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed so the consent, if given, can be properly and fairly described as true consent.”
A child is said to be Gillick competent regardless of their age, if they can understand the nature, consequences and alternatives of the proposed treatment, and possess the ability to: retain, use, and weigh up the decision and communicate their decision once made. Gillick competency is not straightforward, and each child’s situation would be considered on an individual basis.
A Gillick competent child’s decisions relating to their medical treatment would be prioritised over those of their adult relative or sponsor.
A parent whose child is due to travel to the UK under the Homes for Ukraine scheme must give proper thought as to the sponsors ability to meet their child’s needs.
Parental responsibility can often be a complex area of family law, and where a dispute over parental responsibility for a child arises specialist legal advice should be sought.
At Charles Russell Speechlys LLP, our family law practitioners have extensive experience in dealing with cases involving children including those where issues relating to parental responsibility are a major factor.
