Parental responsibility is defined by section 3 (1)of the Children Act 1989 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” It stops there. To get some idea of what this means in practice visit this page.
All mothers automatically have parental responsibility (PR) when their child is born, but not all fathers. A married father will automatically have PR too but not unmarried fathers. If an unmarried father has signed the birth certificate of a child born after December 2003, he too will automatically acquire PR, but it is worth bearing in mind that he cannot sign the birth certificate on his own. Section 4 of the Children Act 1989 applies and thus an unmarried father will only gain PR with the consent of the child’s mother. It can also be acquired by written agreement.
If the mother refuses, then the father seeking PR has no choice but to apply to the courts.
Refusal to grant PR to a father by a mother is one of the thorniest issues in family law. When both parents at loggerheads they can get very upset indeed about agreeing to or denying PR to the father of a child. Worse still, it is not generally known that in law, under Section 4 (2A) of the Children Act, PR which has been granted to the unmarried father of a child can also be removed by the court. Again, this does not apply to married fathers.
Is that distinction incompatible with Articles 8 and 14 of the European Convention on Human Rights (ECHR)?
Arguments abound on this issue – is the fact that unmarried fathers have no automatic right to PR fair “in this day and age”, when cohabiting couples with children are fast becoming the norm and more fathers than ever before are raising children as house husbands, whether alone or with a partner? Equally, when is it fair to remove PR from such fathers?
The parent-child bond is perhaps the most fundamental in the family and few would disagree with the idea that children have a right to be raised by both their parents if all possible, whatever their family circumstances. That bond is not just about genes, care (which can be provided by others) or money (although that is clearly important). It is also about understanding who you are. Know your parents and you know your origins, your place in the world on the day you came into it. You share strong bonds and family history. So, although it is possible for PR to be granted to others who are not your natural parents, it is rare to remove PR from a natural father, and there have been only two cases of the courts removing parental responsibility from a parent since 1995.
In the first case – Re P – the judge terminated the parental responsibility of a father who had been sent to prison for injuring his child. He said
“I believe that there is no element of the band of responsibilities that make up parental responsibility which this father could in present or in foreseeable circumstances exercise in a way which would be beneficial for the child. I therefore conclude that it is appropriate to make an order as sought under section 4 [of the Children Act]…bringing to an end the parental responsibility agreement entered into….”
And the second – CW v SG – has just been referred to the Court of Appeal. This illuminating case from earlier in the year concerned the relationship between a father and his son, called ‘D’ in the case reports. The boy’s parents had a “turbulent” relationship. The man used illegal drugs and the mother had children from other relationships and suffered from depression.
The father was jailed after being found guilty of sexually abusing two of the woman’s daughters. As soon as the man was released, the woman applied to have PR terminated. The parents were unmarried but the father was named on the child’s birth certificate so, under the Family Law Act 1996, he had acquired PR.
Mr Justice Baker carefully considered the arguments but followed the decision in Re P.
He too applied section 1(1) of the Children Act to the facts of the case and in order to do so, considered the “so called welfare checklist” at Section 1(3). He concluded, for a number of factual reasons, that the removal of the man’s parental rights was certainly in the child’s best interests.
In relation to the ECHR argument, he referred to a previous decision of the European Court of Human Rights – Smallwood v UK (1999) 27 EHRR 155. In that case, the European Court considered whether the termination of an unmarried father’s parental responsibility by an English court was in breach of Articles 8 and 14. The father argued that he had been discriminated against when his parental responsibility was terminated by virtue of his marital status and sex because the courts cannot terminate the parental responsibility of a married father. The court accepted that the father’s Article 8 rights were involved but concluded that there had ben no breach of his rights either on the basis of his marital status or of his gender. On the subject of his marital status, the court declared:
“The Commission recalls that the relationship between natural father’s and their children varies from ignorance and indifference to a close stable relationship indistinguishable from the conventional family unit (McMichael v UK (1995) 20 EHRR 205). For this reason the court has heard that there exists an objective and reasonable justification for the difference in treatment between married and unmarried fathers with regard to automatic acquisition of parental rights…
In particular, the Commission notes that notwithstanding the apparently wide definition of ‘parental responsibility’ in section 3(1) of the Children Act, it does not necessarily entail contact rights, as evidenced by the applicant’s position after those rights have been rescinded. The Commission recalls that in its 1986 report the Law Commission considered that, if courts were unable to rescind parental responsibility orders when this is found to be in the best interests of the child, they would be reluctant to make such orders and mothers would be more likely to oppose their provision. Moreover, the Commission recalls that parental responsibility may be granted again should a further request be made by the applicant….the Commission therefore, considers that the difference in treatment between married and unmarried fathers with respect to the rescission of parental responsibility has an objective and reasonable justification.”
So, there was no violation of this father’s rights under the ECHR legislation. The Judge went on to order that the father was not to become involved in any application to adopt his son.
However, Mr Justice Baker also declared:
“Although I am terminating the father’s parental responsibility, that does not prevent him from applying for contact because section 10(4) of the [Children’s Act]Act provides that a parent is entitled to apply for any section 8 order [regarding contact with the children] as of right.
But, added the judge, under section 91 (14), “I have the power to order that no application for an order under 8 may be made by the father without the leave of the court.”
But he had decided against making such an order.
“The authorities…specify that the power to make such orders is to be used with great care and sparingly. Furthermore, the issue only arose in the course of the hearing and has not been fully argued before me. I do, however, direct that any application by the father for an order under section 8 of the Children Act in respect of D should, in the first instance, be transferred to the High Court and listed before me if available.”
In other words – the judge did not wish to make an order saying the father could not make an application for contact with the court’s permission, but he still wished to see and consider any such application.
As the law currently stands then, parental responsibility towards a child is a privilege for unmarried fathers, and one that can be lost.
This is an intriguing case and I for one will be very interested to see what the Court of Appeal makes of it.