Melissa Vaughan is a member of Oriel Chambers Family Team.
Here Melissa discusses the court’s power to revoke parental responsibility and the recent case of Re A (Parental Responsibility) [2023] EWCA Civ 689.
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Sir Andrew McFarlane delivered judgment in respect of parental responsibility, specifically focusing on the acquisition and revocation of the same and the distinction between married and unmarried parents that is outlined within the Children Act 1989.
The Children Act 1989 highlights that a child’s mother will have parental responsibility (‘PR’) in all cases, regardless of whether she is married or not (s.2). An unmarried father or a second female parent may acquire PR by being registered on the birth certificate, making an agreement with the mother or by obtaining an order from the court (ss.4(1) and 4ZA(1).) A stepparent may also obtain PR by making an agreement with the mother or by obtaining a parental responsibility order (s.4A(1)).
Whether or not parental responsibility can be revoked depends on upon the method of attainment. The parental responsibility of any person is extinguished by adoption under s.46(2) Adoption and Children Act 2002. Furthermore, the court has the power to bring the parental responsibility of unmarried father’s, unmarried second female parents or step parents to an end (ss4(2A), 4ZA(5) and 4A(3) Children Act 1989). Where parents are married or in a civil partnership, there is no power to revoke parental responsibility of a father or a second female parent.
In this recent case Re A (Parental Responsibility) [2023] EWCA Civ 689 the mother applied for a declaration of incompatibility under the Human Rights Act 1988, stating that this distinction discriminates unmarried mothers and their children.
The Court held that whether or not there is statutory power to bring parental responsibility to an end, in every single case the court does have the power to control and limit a parents ability to exercise parental responsibility through the making of s.8 orders in the form of prohibited steps orders and/or by a prohibition on further court applications (i.e. barring orders under s.91(14) Children Act 1989). The court can also enhance a parent’s parental responsibility by making specific issue orders. However, it was accepted by the Court that limiting a person’s status, does not in itself remove the status. The Court stated that in protecting the mother and the children, the fact that the court can make orders to limit and remove any value of the status is an adequate remedy.
There was no dispute that the issue raised by the mother engaged Article 8 and that there was prima facie discrimination relating to martial status. The test set out in Bank Mellat, Tigere and McLaughlin was applied.
The Court held that limitation and discrimination is capable of justification, given that it has the legitimate aim of prioritizing the state of matrimony and civil partnership over less formalized relationships which has been maintained by Parliament as a central tenet of Family Law. The court stated that ‘any measure which allows for that status to be reduced would defeat the object of the policy’.
The Court went on to conclude that the distinction in treatment between married and unmarried father’s is justified given that each scheme is justified on its own terms, with different aims and being designed to meet different circumstances. The Court went on to say that the inability to apply to revoke parental responsibility in respect of a married father is ‘outweighed by the overall benefit to the community in maintaining the priority that is attributed to marriage and partnership.’ As such, the court subsequently dismissed the appeal.
