Parental Responsibility – A look into the recent ruling of Re A (Parental Responsibility)
Parental Responsibility is an umbrella term for the rights and responsibilities given to parents (and others) in respect of the children for whom they care. It is defined in law 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.’ (Section 3(1) of the Children Act 1989)
People with parental responsibility are entitled to have a say in major decisions about the child, such as:
- where the child should live;
- where they should go to school;
- what (if any) religion the child should have;
- what name they should have;
- the giving or withholding of medical treatment, and;
- dealing with their money or property.
Generally parental responsibility lasts until the child reaches 18 but it may come to an end sooner in certain circumstances.
Who has Parental Responsibility?
Some people automatically acquire parental responsibility for a child when they are born; others can acquire it in various ways following the birth. The following people have (or can obtain) parental responsibility for a child:
- The mother of a child;
- The father of a child if married or a civil partner to the mother at the time the child was born;
- The unmarried father of a child if he marries (or enters into a civil partnership with) the child’s mother following the birth, is registered as the child’s father, a parental responsibility order is made in his favour, or he enters into a parental responsibility agreement with the mother;
- A second female parent (subject to certain conditions);
- The step-parent or married/unmarried/civil partner of a parent with parental responsibility if the consent of the other parent with parental responsibility or a court order is obtained;
- Someone appointed as a special guardian for the child by the court;
- An adopted parent;
- Someone who is named in a Child Arrangements Order as whom the child shall live with;
- Someone who is appointed as a guardian on the death of the person(s) who has parental responsibility for a child;
- A local authority if granted an interim or final care order under section 31 or 38 of the Children Act 1989 or an emergency protection order under s44 of the Children Act 1989
Revoking parental responsibility – Married vs Unmarried Parents
As can been seen from the above, there are a number of ways that parents (and others) can acquire parental responsibility for a child. In certain circumstances, there are also ways in which this can be revoked.
The making of an adoption order revokes the parental responsibility previously held by the parents (or others).
However, short of an adoption order, there is no legal power to revoke the parental responsibility of a mother. There is also no power to revoke the parental responsibility of a father or second female parent who was married to, or in a civil partnership with, the child’s mother.
In contrast, unmarried fathers, unmarried second female parents and step-parents can have their parental responsibility revoked by the court. This has created a tension between the status of married and unmarried fathers.
The courts have grappled previously with the different status of married and unmarried fathers in respect of revoking parental responsibility. They have consistently ruled that the different status afforded to them is justified and is not a breach of human rights legislation.
A further challenge recently came before the Court of Appeal and, on 16th June 2023, judgment was handed down. The appellant mother argued that the distinction between married or civil partnered parents, and those who are neither married nor in a civil partnership, is incompatible with the European Convention on Human Rights (ECHR) and cannot be justified as a distinction simply based on birth status. She asked the court to make a declaration that the law in England and Wales was incompatible with the ECHR, specifically articles 14 and 8 (regarding discrimination and the right to family and private life). She maintained that the law, as it currently stands, unjustly discriminates against married mothers and their children, by not permitting the removal of parental responsibility from fathers in situations where they has acted in a manner that would justify the removal of parental responsibility if they were unmarried (such as perpetrating serious domestic abuse against the mother and/or child).
The children were represented by a children’s guardian, and the guardian supported the mother’s appeal and submitted that there was no justification for affording a privileged position to married parents in these circumstances.
The appeal was opposed by the Lord Chancellor. It was argued on their behalf that the distinction made between married and unmarried parents was justified and was an issue of social policy which was within the wide margin of appreciation afforded to Parliament in such issues by the ECHR. It was also noted that the court had a raft of other powers to limit the exercise of a parent’s parental responsibility (such as had already been used in this case by the High Court), even if it could not be revoked entirely.
The Court of Appeal dismissed the mother’s appeal and refused to make a declaration that the law was incompatible with the ECHR. In coming to this decision, the court concluded that: “…it is clear that the difference in the treatment of unmarried and married fathers is justified by the long-standing principle that married fathers (and mothers) should have irrevocable parental authority/responsibility for their children. Affording priority to the establishment, and maintenance, of stable family life by commitment through marriage or civil partnership is what it is all about.”
The court therefore agreed with the decisions that have been made when this issue has come before courts previously. Whether or not the mother seeks to seek to take this further, and seek permission to appeal to the Supreme Court, remains to be seen.
The Northern Irish context – SV (A Minor) v PV & Anor  NICA 41
The same debate has also occurred in the jurisdiction of Northern Ireland, and cases have been brought challenging the difference between married and unmarried parents when it comes to revoking parental responsibility. The Children (Northern Ireland) Order 1995 mirrors the provisions of the Children Act 1989 in this respect, so the same tension exists as in England and Wales.
On 21st June 2023 the Northern Ireland Court of Appeal delivered a judgment in which the 17-year-old son of a convicted rapist was denied in his appeal to have his father’s parental responsibility removed (a status the father obtained through being married to the boy’s mother).
The son and his two siblings were taken into care after their mother died in 2014. In 2015, their father was convicted of rape and the indecent assault of his stepdaughter. He was jailed until 2021.
Following this, all three of the children made applications for his parental responsibility to be revoked. However, at first instance these applications were dismissed. One child, the 17 year old, appealed this decision, which is how the matter came before the Northern Ireland Court of Appeal. The court rejected this appeal for reasons similar to those given by the Court of Appeal in England and Wales. The Northern Irish court stated that: “…we think that it is for Parliament to decide if married status should no longer prevail to prevent the revocation of parental responsibility for fathers or mothers. The legislature is best placed to consider the difficult and complex policy consequences of changes to the statutory scheme…the granting of an order in favour of the appellant in the terms sought in this case introduces the real risk of creating a greater inequality between mothers and fathers generally than currently exists between married and unmarried fathers.”
Keeva Gilroy (paralegal)