Parental responsibility (‘PR’) is defined in the Children Act 1989 as all the rights, duties, powers, responsibilities and authorities which a parent has in relation to a child and the child’s property. Parents with PR can make or be involved in important decisions in a child’s life including in relation to where a child should live; where and how the child should be educated; medical treatment; religious upbringing and changing a child’s name. PR is automatically granted to biological fathers (the focus of this article) who are named on a child’s birth certificate or added to the certificate; who were married to, or in a civil partnership with, the mother when the child was born or who subsequently marry or enter into a civil partnership with the child’s mother; or who enter into a PR Agreement with the mother approved by the court, or obtain a PR court Order. By contrast, in all cases whether married or not, a child’s mother will have PR. What is lesser known is that PR can be removed by court Order from unmarried fathers but cannot be removed from married fathers. A recent case considered the distinction between married fathers (which hereinafter also includes civil partnership fathers) and unmarried fathers with PR and whether the inability to remove PR from married fathers is discriminatory against married mothers and children of married parents.
Re: A (Parental Responsibility) 2023 EWCA Civ 689 was an application by a married mother to the Court of Appeal that came before the Present of the Family Division, Sir Andrew McFarlane, Lord Justice Moylan and Lord Justice Dingemans. It was a distinguished Bench for what appeared at first glance to be a simple question of whether PR could be removed from a married father. A hint that more significant issues lay underneath came in the form of the Lord Chancellor and Secretary of State for Justice being party to the proceedings. The inability, by law, to remove PR from a married father was, it was argued, discriminatory against married mothers in breach of their rights, and those of their children, under the European Convention on Human Rights. In this case, the mother sought revocation of her abusive ex-husband’s PR in respect of their children.
Irrespective of statutory powers to bring PR to an end, a court can control and limit exercise of PR by all parents through the making of prohibited steps Orders. Consequently, if one parent’s ability to exercise their PR is limited by law, the other parent’s ability to exercise their PR can become enhanced by law. A prohibited steps Order is a preventative measure that can include preventing a parent from making decisions on medical treatment; preventing a parent removing a child from someone’s care; or preventing a parent being involved in decisions concerning education. A specific issue Order can enable the decision making of a parent on a particular issue such as whether a child has medical treatment or where a child should go to school. These powers may be rarely granted by the court but exist to protect and preserve a child’s welfare when parents are in real conflict.
In Re A, the children were 16 and 13 and their parents had been married. The father therefore automatically had PR for both children. During the marriage the father had been physically, emotionally, psychologically, and sexually abusive towards the mother. The father had behaved in a coercive and controlling manner and the parents had separated when the children were 6 and 3. The father’s behaviour worsened after separation and the children had not seen their father since they were 9 and 6. The children and mother were moved to a confidential location and the children’s names were changed for their wellbeing and safety. Following a diagnosis of paranoid schizophrenia, the father was placed under an indefinite restraining Order. The judge in an earlier hearing had found that the cumulative impact upon particularly the oldest child of his father’s violent and disturbing behaviour had been profound. The court had already made extensive Orders under the Children Act 1989 giving the mother the ability to exclusively exercise PR for the children without involving the father. The Order was unusually comprehensive and culminated in clarification that the mother was not required to involve the father ‘in the exercise of any aspect of parental responsibility’.
The mother’s day to day management of the children’s lives was therefore endorsed by court Order. However, the mother sought a declaration of incompatibility with her right to a private and family life under Article 8 ECHR, and when taken with Article 14 (rights and freedoms to be protected and applied without discrimination), that she was being discriminated against as a married mother, and her children as children of married parents, because PR could not be removed from the father. It was argued on behalf of the mother that removal of PR is a ‘gold standard’ but is not available to married parents or children of married parents. It was also not available to this mother and children who were desperate to sever themselves completely from the father.
It was argued on behalf of the Lord Chancellor and Secretary of State for Justice that the policy of the Children Act 1989 is to afford priority to marriage or civil partnership and that priority had been maintained by Parliament. It was submitted that the status of being married or in a civil partnership establishes a fundamental difference that has been maintained through the legislative scheme. When a child is born there is a need for at least one parent to have PR, namely the mother. Parliament has established that, where a couple are married or in a civil partnership, then PR, on the same irrevocable terms, should be extended to the other parent. There is a considered distinction by Parliament between those who are unmarried and the wide range of personal relationships that may exist, and those who positively committed to the establishment of a family unit through marriage or civil partnership. A further aspect of the policy is for everything to be done to encourage unmarried fathers to gain and hold PR. Given the distinctions in automatically gaining PR, Parliament considers there should be a distinction for revoking PR. The court’s ability to neutralise PR through the making of prohibited steps or specific issue Orders means that a mother, whether married or unmarried, is not left without an effective remedy.
The court considered in fine detail the various aspects of the legislative powers and EHCR. It was considered that the removal of PR was of little weight as revocation would not cause any material change in the lives of the children and their mother. The father was completely prevented from exercising any aspect of PR – he did not know his children’s names and he did not know where they lived. It was considered important not to detract from the importance of the overall social policy aim of affording priority to marriage and civil partnership in the community as a whole, particularly where the court can offer practical protection with prohibited steps Orders. Whilst it was accepted that there is a difference in treatment, and therefore prima facie discrimination, between married and unmarried fathers, the impact of that difference upon the children and their mother is, in reality, minimal. There can be no undoing of biology and so no changing of the fact that the children’s father was, and remains, their father. It follows that removing PR also does not change that fact. In all the circumstances, the mother’s application could not establish that the absence of power to revoke PR from married fathers is in breach of ECHR, and so PR could not be removed from this particular father. The mother’s appeal was dismissed and her unilateral exercise of PR under court Order continues.
To learn more about Prettys' Family Services here or to get in contact via enquiry@prettys.co.uk
