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The Unequal Power to Grant and Remove PR from Biological Parents

Stephen Williams, Barrister, St Mary’s Chambers, calls for reconsideration of the restrictions on the acquisition of parental responsibility by fathers

Stephen Williams, Barrister, St Mary's Chambers

There can be no doubt that in society men have historically had many advantages over women and many of these unfair and unjustifiable advantages continue to exist today.  However, there can equally be no doubt that when it comes to parental responsibility ('PR') for children some men are at a distinct disadvantage for no particular, justifiable reason.  As the stereotypical 'family unit' has changed, this is an area of law that (whilst niche) appears far overdue for updating. 

Current legal position and the perceived problems

Parental responsibility is defined by s3(1) 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 is notable, however, that specifically s3(4) does not exclude an individual who does not have PR from an obligation to maintain their child.

The reason why all of this is relevant is that all birth mothers acquire parental responsibility automatically, and this acquisition is not affected whether or not they are married to the father of the child.   Likewise fathers who are married to the mother gain automatic parental responsibility ; however, if they are not married to the birth mother, then they have to 'acquire' parental responsibility through other provisions within the Act.   The circumstances in which an unmarried father might acquire parental responsibility are set out in s4(1) CA 1989. Broadly they are:

- He is registered on the birth certificate for the child. This has to be on the first registration rather than on a later alteration;

- He and the mother enter into a 'parental responsibility agreement' providing for him to obtain PR; or

- He obtains an order from the court granting him PR.

If the number of children born out of wedlock grows, greater will be the number of fathers who need to utilise s4(1) to acquire parental responsibility for their children. In many cases they are registered on the birth certificate and there is no difficulty or hardship suffered.  However, if they are not (and the mother doesn't agree to enter into a parental responsibility agreement), then they have to go to court to acquire parental responsibility.

When the government enacted the Children Act, it did not provide any form of statutory test as to how a court would judge whether a father should acquire parental responsibility through a court order, albeit the s1(3) welfare checklist applies to such a decision.  Inevitably therefore caselaw has developed to fill the void.  The most regular 'test' that has been sought to applied is from Re H  within which the Court of Appeal (under the previous statute) provided the following guidance:

'the court would take a number of factors into account, including the degree of commitment which the applicant had shown towards the child, the degree of attachment which existed between them, and his reasons for applying for the order.'

This tripartite test has subsequently been said by Ward LJ in Re C & V  to not be a comprehensive test, but simply a list of factors to be used to 'answer the more general question of whether or not a father has shown genuine concern for the child and a genuine wish to assume the responsibility in law that he already had by natural causes'.  However, crucially the court retains a discretion as to whether such a father should have parental responsibility, a discretion which is not exercisable in the case of a mother or indeed a married father.

Inevitably there are circumstances in which a discretion about whether an individual should have parental responsibility are sensible.  A child born as a result of a violent rape is an obvious and vivid one.  However, the child born out of a violent rape by a father married to his mother would not be so protected, and no discretion would be applicable in these circumstances.  By contrast, a child born out of a loving, but non-marital, relationship may have a father who does not have PR because he was never registered, and he doesn't have the funds or ability to apply to court to acquire PR.

The situation is compounded further when considering who can have their PR terminated.  The only circumstance in which a birth mother can lose her PR is where an adoption order is made for the child.  This is also the case for a married father.  However, an unmarried biological father who has acquired parental responsibility through any of the mechanisms in s4(1) can have that same PR removed via court order pursuant to s4(2A) CA 1989.  It is however acknowledged that this is a very rare order to be made by the Family Court.

Again, there are inevitably situations where it can be accepted that there are perfectly legitimate reasons why a court might want to remove a parent's PR.  However, the current statute provides for only a small subsection of PR holders to face the possibility that their parental responsibility might be removed by court order.  There is no apparent justification for this distinction as to why one subset of parents who commit such wrongdoing should be liable to have their parental rights removed whilst others do not?

For both the acquisition and removal of PR there is an inevitable inequality between the sexes of parents but also between the historically recognised 'legitimate' and 'illegitimate' children.  It is difficult to see why in 2021 this distinction exists or why it should continue to exist.  Such a disparate position cannot be in the best interests of children.

Proposed changes

As for how the position could be changed to remedy these apparent inequities, I would suggest a few changes to the existing statute.

Firstly, the ability for a court to remove parental responsibility appears to be a legitimate and appropriate order to make in limited circumstances.  Inevitably the circumstances would vary but there has been developed a considerable bulk of caselaw on the issue .  To remedy the perceived inequality (as set out above) the power under s4(2A) CA 1989 should be extended to include those who acquire their parental responsibility automatically on birth.  It is acknowledged that this may lead to other redrafting of the statute, but this would fulfil the legitimate aim of providing equality for the power to remove parental responsibility from parents in circumstances applicable to all.

Secondly, with respect of addressing the inequality on the granting of parental responsibility, there is clearly a public interest for parents to be assumed to have parental responsibility.  For every parent to have to apply for parental responsibility would be unworkable. Inclusion on the birth certificate has enabled a large number of unmarried fathers to acquire parental responsibility, as have parental agreements.  It is unclear to me precisely how many mothers (who didn't include the father on the birth certificate) subsequently enter into such agreements; whatever the number, they help in reducing the number who have to go to court. 

The principal focus for any change is therefore the fathers who do not feature within these other categories. All other fathers (and indeed all mothers) acquire PR automatically without having to pass any form of discretionary test. It is my view that almost any individual (see below) who can prove that they are the biological father to a child, should also have the same automatic grant of parental responsibility. 

The mechanism to achieve such a change would appear to be an addition to the statute to provide that either with the confirmation from the mother that they are the biological father to a child or DNA testing that proves this biological connection they be granted PR automatically on a paper application.  All the arguments about discretion would be removed and there would be a presumption in favour of PR being granted. Of course, in the circumstances where PR was not thought appropriate, there would be the power to remove that automatically acquired PR through the pre-existing powers under s4(2A).

It is accepted that these suggestions do not cover the wide array of differing families that now exist in our modern society.  Additional considerations would need to be had with respect of sperm donors, and limits would be required to prevent such biological fathers automatically being able to obtain PR for all of their biological offspring years later.  This however is a limited exception to a general rule. 

Similarly, it might also be argued that for some vile offenders the presumption should be that they never should have PR and it shouldn't be victims who have to go to court to take those automatic rights away. However, these incidents are very much the exception to the standard case that comes before the Family Court and with proper judicial oversight (and the provision of legal aid through the Legal Aid Agency) such exceptions can be properly managed. There may indeed be other specific nuanced arguments that individuals may be able to come up with against these suggestions. However, it is my view (of course always willing to be persuaded) that these exceptions do not make the unequal treatment on grounds of sex or marital status any more justifiable in 2021 and the rules need to be changed.