Compatibility with the European Convention on Human Rights
- The Act contains powers to make regulations which will specify what relationship with a deceased child is required in order for someone to qualify as a ‘bereaved parent’ for the purposes of determining eligibility for parental bereavement leave and/or pay.
- The exercise of this power will result in the conferral of rights on some groups of adults with particular relationships to children, and not to others. The power could therefore be exercised in a manner which engages Article 14 read with Article 8, or possibly Article 1 of Protocol 1.
- However, the Department considers that the power is drafted so as to enable it to be exercised in a manner which is compatible with Convention rights, in accordance with section 6 Human Rights Act 1998.
- Modern family structures can be complex, and sometimes fluid, and there are a wide range of legal and factual relationships between an adult and a child which could be said to be ‘parental’ in nature. The existence of the power recognises that different views are possible as to which of these relationships should qualify for the entitlements created by the Act, which recognises the particularity of parental bereavement. It is necessary therefore to allow for secondary legislation which can identify those relationships (on the basis of detailed legal and factual criteria) in which adults are likely to be particularly affected by grief on the loss of a child for whom they have been caring. In addition, the Department anticipates that the make-up of family units and social attitudes towards different parental relationships will continue to evolve; for example, relationships created by fostering and adoption arrangements are areas in relation to which legislation can be expected to continue to change (and to develop differently across the different jurisdictions of the United Kingdom). The existence of delegated powers to determine eligibility allows provision to be adapted to reflect these changes in the future.
