Legal Update: Restricting parental responsibility

In the recent case of H v A (No 1) (2015) EWFC 58 the court granted an order that amounted to the "comprehensive proscription of the exercise of the father's parental responsibility for the duration of the minority of the children". The case is an important example of the exceptional situations where, even if parental responsibility cannot be removed from a party, it can be significantly restricted to a point where it cannot be exercised in any meaningful sense in order to protect a child's welfare.

The case involved three children whose father was convicted of a number of offences, including battery on the mother, breach of a non-molestation order, and encouraging the commission of assault, theft, criminal damage and arson while in prison. In light of the risk to the children, the mother argued that the restriction on the father's parental responsibility needed to be "fully comprehensive" and that the disclosure of "any source of information" constituted an unacceptable risk of the father discovering the whereabouts of the mother and the children.

Section 3(1) of the Children Act 1989 defines parental responsibility 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". Parental responsibility is inextricably linked to welfare and must always be exercised in a way that benefits the child and aims to promote his or her moral, physical and emotional health.

Fathers' parental responsibility

Parental responsibility is automatically acquired by birth mothers. Fathers can acquire parental responsibility through marriage either before or after a child's birth. Unmarried fathers can acquire parental responsibility by being named as the father on the birth certificate registered after 1 December 2003; by entering a parental responsibility agreement or through an order from the court.

A mother cannot lose her parental responsibility other than through adoption. A father who obtained parental responsibility through marriage can also only lose his parental responsibility through adoption. However, under section 4(2A) of the Children Act 1989 an unmarried father can have his parental responsibility revoked by the court if he acquired it by being registered on the birth certificate, through a parental responsibility agreement or through a court order.

In 1999, the European Court of Human Rights held in Smallwood v UK that there is an objective and justifiable distinction between married and unmarried fathers which did not breach a father's rights. One of the accepted reasons for the distinction was that if it was not possible to remove parental responsibility from unmarried fathers, courts would be more reluctant to grant parental responsibility and mothers would be more likely to oppose it. To date there have only been two reported cases of a father's parental responsibility being terminated by the court.

As the father in H v A acquired parental responsibility through marriage, it could not be terminated by the court. However, the court can make a prohibited steps order to restrict the exercise of parental responsibility where this is in the best interests of the child, as it did in this case.

The court was asked to determine whether the exercise of the father's parental responsibility should be restricted further to prohibit the father's access to an annual report from the children's school containing simply the "raw data" of their grades. Ordinarily it would be in the children's best interests to have their father's involvement in their lives and to know he was interested in their progress at school but the facts of this case were considered to be so exceptional to justify a departure from this. The father could not demonstrate why it would be in the children's best interests, rather than his, to have this information disclosed and the risks of accidental disclosure of protected information concerning the children's whereabouts were accepted.

Given the children's physical and emotional needs and the risk of future harm from the father, MacDonald J made an order prohibiting the father from taking any steps in the exercise of his parental responsibility until the children reached the age of 18. This included a proscription from requesting any information from the school relating to the children, an order for no contact direct or indirect, a barring order until the children were 18 and a declaration that the mother was under no obligation to inform or consult the father in respect of the children.

Given the few cases where courts have terminated a father's parental responsibility, the approach of the judge in H v A may be a way of keeping the child's welfare as the central focus while preserving the legal ties between father and child until they are of an age where they can decide for themselves what relationship, if any, they wish to have with their parent. It also opens up the possibility of making a comprehensively restrictive prohibited steps order against a mother which reduces the appearance of differential treatment on the basis of sex.

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Legal Update is produced in association with experts at Coram Children’s Legal Centre ?www.childrenslegalcentre.com

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