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The Termination of Parental Responsibility: Awaiting the Court of Appeal's Judgment in the Appeal of CW v SG [2013] EWHC 854 (Fam)

Esther Lieu, barrister of Queen Square Chambers in Bristol, explores the circumstances in which parental responsibility may be terminated and considers the effect of s.4(2A) in anticipation of the Court of Appeal's judgment in the appeal from CW v SG.

Esther Lieu, barrister, Queen Square Chambers, Bristol






Esther Lieu, barrister, Queen Square Chambers

In November 2013 the Court of Appeal heard the father's appeal against the order made by Baker J in CW v SG [2013] EWHC 854 (Fam) terminating his parental responsibility in respect of his 8 year old child. Permission was granted to hear the argument that the differential treatment of unmarried and married fathers under s.4(2A) Children Act 1989 is discriminatory contrary to Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR).

To date there have been only three reported cases of a court terminating a father's parental responsibility. Notwithstanding the fact that the first case Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048 pre-dated the changes brought about by the Adoption and Children Act 2002 and the enactment of the Human Rights Act 1998, it was approved 18 years later by the subsequent two reported cases, CW v SG and Re A (Termination of Parental Responsibility) [2013] EWHC 2963 (Fam) which succeeded and relied on CW v SG and in which no representations were made on behalf of the father who did not oppose the application.

Whilst the Court of Appeal's judgment in CW v SG is awaited this article explores the circumstances in which parental responsibility has been terminated, considers the effect of s.4(2A) and asks what difference the forthcoming judgment may make.

Parental responsibility
Section 3 of the Children Act 1989 states:

"Parental responsibility equates to all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and their property."1

Under s.2 all mothers and all fathers who were married to the mother at the time of the child's birth acquire parental responsibility automatically2 and lose it only upon the child's death, adoption or attainment of the age of 183: it cannot be terminated by court order. For all unmarried fathers, civil partners, partners, and other individuals seeking parental responsibility, s.4 states that it can be obtained only with the mother's consent (by written agreement or the registering/ re-registering of the birth certificate) or by order of the Court (s.4(1)). Parental responsibility in these circumstances is therefore neither automatic nor permanent as s.4(2A) states

"A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders."

Applications for a parental responsibility order
The case law on the making of parental responsibility orders was cited in CW v SG (as well as Re P and Re A) so it is useful to consider briefly the approach the courts have taken to applications for parental responsibility.

The starting principle is that fathers should be encouraged to seek parental responsibility rather than be rebuffed4. The test to be applied in considering a father's application for a parental responsibility order is s.1 Children Act 1989 (the welfare checklist at s.1(3) does not apply). In Re S (Parental Responsibility) [1995] 2 FLR 648 Ward LJ gave the leading exposition on how to apply the s.1 test, setting out a list of non-exhaustive factors including the degree of commitment the father had shown towards the child, the degree of attachment existing between the father and child and the father's reasons for applying for the order. An application should not be refused on the speculative basis that were the father to exercise his parental responsibility he would significantly and adversely affect the child's future stability5; however where the purpose of the father's application was to obtain the precise information that a child (of sufficient age and understanding) wished to conceal then the application was refused6.

Parental responsibility and contact
Applications for a parental responsibility order must be considered separately from applications for an order under s.8 Children Act 1989. In Re W (Parental Responsibility Order: Inter-relationship with direct contact) [2013] EWCA Civ 335 the Court of Appeal allowed the father's appeal against an order terminating his parental responsibility, finding that the justices had misdirected themselves in interlinking the matter with the father's application for contact. The relationship between parental responsibility and s.8 orders is not however non-existent: in Re W the court observed that in some circumstances there may be an inverse correlation such that where contact is likely to be or has been prohibited, then a parental responsibility order may be even more important to ensure the child has a "favourable positive image of an absent parent"7. In CW v SG however Baker J sought to limit a father's contact by limiting his parental responsibility, holding that were he not to terminate his parental responsibility then the father would probably apply for contact thereby placing intolerable strain on the mother. Arguably a s.91(14) bar or restrictions on the father's parental responsibility may have better protected the mother as a father without parental responsibility is not precluded from applying for contact.

Applications to terminate parental responsibility
Applications to terminate parental responsibility can be brought by anyone with parental responsibility in respect of that child (s.4(3)(a) CA 1989) and, with leave of the court, the child itself (s.4(3)(b) CA 1989; FPR rr. 8.1 – 8.13) provided the child is of sufficient understanding8.

As with the presumption of acceding to an application for a parental responsibility order, there is a presumption that once granted it should be continued.. The welfare of the child is paramount and courts must ensure that an order terminating parental responsibility is only used as "an appropriate step in the regulation of the child's life where the circumstances really do warrant it and not otherwise"9.

In Re P Singer J found it material to consider whether in the same circumstances as the case before him an application by the father for parental responsibility would be granted. Baker J and Roderic Wood J upheld this approach and in applying Ward LJ's guidance in Re S they found such a supposition to be 'inconceivable'. It is arguable however that applying such an inverse approach to the matter is not entirely correct given the presumption of continuance of parental responsibility, the no order principle, the power to restrict a father's exercise of his parental responsibility and the fact that the s.1(3) welfare checklist applies to the termination but not granting of parental responsibility.

In addition to applying the above approach, the three reported cases present a varied set of additional factors that were held to be relevant considerations in determining whether terminating a father's parental responsibility was an "appropriate step in the regulation of the child's life"10. Reasons in support of termination included:

Section 4(2A) - is it discriminatory?
Courts should be slow to terminate a parental responsibility order "…not least because they can only do so in the case of unmarried fathers"13.

Counsel for the father in CW v SG sought to argue that s.4(2A) is incompatible with Article 8 ECHR (the right to a family life) and Article 14 ECHR (the right to enjoy the freedoms and rights enshrined in the Convention without discrimination) since it infringes on the family lives of unmarried fathers on account of their marital status and gender. Baker J dismissed the argument, relying on the decision of the European Court of Human Rights in the case of Smallwood v UK (1999) 27 EHRR 155 where the Court accepted that the father's Article 8 rights were engaged by the termination of his parental responsibility but disagreed his rights were breached due to his gender. The Court found that the differential treatment on account of marital status was reasonably and objectively justified as "the relationship between natural fathers and their children varies from ignorance and indifference to a close stable relationship indistinguishable from the conventional family unit"14. Accordingly the interference was justified and the father's rights were not breached on account of marital status either.

Interestingly, the Court noted that a father whose parental responsibility had been terminated was not precluded from applying for contact, nor was he prevented from re-applying for parental responsibility. That the Court's observations that the ongoing potential for contact between the father and child, and the possibility of re-applying for parental responsibility after it had been terminated reinforced their findings suggests that in the absence of such measures the Court may have felt differently and Baker J's attempt to prevent the father from seeking contact by terminating his parental responsibility does not sit easily against this.

The idea that the conduct of unmarried fathers compared to married fathers towards their children is sufficiently different so as to justify the provisions of s.4(2A) is now before the Court of Appeal. Counsel for the father in CW v SG sought to argue that Smallwood was no longer good law, citing the age of the case and the change in modern day society. However Baker J concluded that Smallwood was still 'firmly in line with the current legal and social context of unmarried fathers15'. In a society where 47.5% of children born in 2012 were born to un-married fathers, such a finding may well be short-lived16.

It will be interesting to see how far the Court of Appeal are prepared to go in their consideration of s.4(2A) and whether the judgment will have any bearing on other aspects of parental responsibility. In Re J M (A Child) (Parental Responsibility) [1999] 2 FLR 737 a court refused the father's application for parental responsibility on the grounds that his severe learning difficulties prevented him from exercising 'the roles and duties that were presupposed of someone vested with parental responsibility' which questions the nature of parental responsibility exercised by married fathers with similar learning difficulties. It remains to be seen whether the judgment has any bearing on applications made under the Hague Convention on the Civil Aspects of International Child Abduction 1980, Article 3 of which requires the applicant to have a right of custody in respect of the child (see McMichael v UK and B v United Kingdom [2000] 1 FLR 1).

Unquestionably a child's welfare is best protected and promoted by its parents' actions rather its parents' status. Many fathers are committed to their child with no regard as to whether they in fact hold parental responsibility. For those fathers (and step-parents, parents under the HFEA etc) for whom holding parental responsibility is important, case law states that there is no reason why it would be refused save for it being contrary to the child's welfare, and it could be said that to argue against the imposition of a test engaging the child's welfare is in itself contrary to the child's welfare. That would however miss the point. The differential treatment under s.4(2A) subjects the applicant, their reasons, abilities and their past, to the scrutiny and criticism of professionals and the court in a way that a mother or married father is not exposed to. It renders parental responsibility less of a status and more a stamp of approval by the court, a stamp which some people by virtue of their gender and marital status are unconditionally entitled to and which others, equally by virtue of their gender and marital status must earn and protect. It can only be hoped that the Court of Appeal's judgment provides much needed guidance – and it is respectfully suggested, updating, to this area of law and society.

[1] A proposed amendment to the Children and Families Bill 2011  by Lord Northbourne to further define parental responsibility received extensive support from the Grand Committee of the House of Lords (including from the former President of the Family Division Baroness Butler-Sloss) but was withdrawn on the basis that attempts to delineate the concept would invariably contain omissions resulting in confusion or loopholes that could be exploited.
[2] Since December 2003, subsequent to s.4(1)(a) CA 1989 (as inserted by s.111 of the Adoption and Children Act 2002). This provision does not apply retrospectively to men married to the mother prior to December 2003.
[3] Section 91(7) & (8) Children Act 1989. See Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 AC 424, [1994] 2 FLR 577. In this case the father violently murdered the mother in front of the child but retained PR.
[4] Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048. In this case the father pleaded guilty to causing NAI to his child. Upon his application for contact the mother cross-applied for orders terminating his PR and imposing a s91(14) prohibition on subsequent orders, both of which were granted by Singer J.
[5] Re C and V [1998] 1 FLR 392.
[6] Re M (Parental Responsibility Order) [2013] EWCA Civ 969.
[7] Re C and V, Ward LJ at 397C as approved by Thorpe LJ in Re W [2013] EWCA Civ 335 at para 11.
[8] There are no reported authorities considering 'sufficient understanding' in the context of a child seeking permission to seek the discharge of a PR order, but alternative case-law suggests, as per FPR 2010 r 16.29 the question is whether they are able to give such instructions on their own behalf.
[9] Re P, Singer J at p1052. Furthermore the no order principle applies: the court must be persuaded that it would be better for the child if the court were to discharge the order than to refuse to do so (s4(3)).
[10] Re P, Singer J at p 1052.
[11] Re P, Singer J at p1054.
[12] CW v SG, Baker J at para 55.
[13] Re C (A Child) [2002] EWCA Civ 446, para 13.
[14] McMichael v UK  (Application No 16424/90) (1995) 20 EHRR 205, para 98.
[15] CW v SG, Baker J at para 22.
[16] ONS Birth Summary Tables 2012.