Discharge of Parental Responsibility in Cases of Abuse – Children Act Proceedings

Discharge of Parental Responsibility in Cases of Abuse – Children Act Proceedings

Discharge of Parental Responsibility in cases of abuse – Children Act Proceedings

In this article we take a look at discharge of parental responsibility by a parent who has committed serious abuse.

What is Parental Responsibility?

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”.

Some of the important life decisions that a parent with parental responsibility can make include for example;

  • choosing or changing the child’s name;
  • consenting to medical treatment;
  • choosing where the child goes to school; and
  • consenting to taking the child abroad for holidays

Who has automatic Parental Responsibility?

Mothers who give birth to their children automatically have parental responsibility. A couple who are married or in a civil partnership at the time of birth both have automatic parental responsibility. The parent will not lose parental responsibility upon divorce or dissolution of the civil partnership.

 How to obtain Parental Responsibility?

There are many ways in which the second parent can obtain parental responsibility for their child and they are as follows:

  • marrying or entering a civil partnership with the mother;
  • having their name registered on the birth certificate;
  • entering into a parental responsibility agreement with the mother;
  • obtaining a parental responsibility order from the court;
  • having obtained a residence order prior to 22nd April 2014; and
  • being named as the resident parent under a child arrangements order.

A local authority will also obtain parental responsibility if an interim care order or a final care order is made by the court.

Ways in which Parental Responsibility can come to an end

There are two ways in which parental responsibility can come to an end.

  1. The first being that the child reaches the age of maturity. In the UK, the age of maturity is eighteen as set out in Section 1 of the Family Law Reform Act 1969. Once a child reaches the age of maturity it is generally considered that the child will have the capacity to make their own decisions and therefore, parental input in the decision making is no longer required.
  2. The second way in which parental responsibility can come to an end is by an order of the court terminating it

Parental responsibility can be terminated by the court

 This can happen in a variety of way, for example:

  1. Making of an adoption order – when a court makes an adoption order, this order will sever the legal ties between the birth parents and the child(ren) and parental responsibility will transfer to the adoptive parent or parents.
  2. Discharging an order that confers parental responsibility – orders such as a child arrangements order for the child to live with a designated person will confer parental responsibility on the parent/carer for as long as the order lasts.
  3. If at a later date the child arrangements order is then discharged then the parental responsibility obtained will cease.

It is worth noting that parental responsibility can also be limited by the court for example by a Prohibited Steps Order, but that will not be explored in detail here as the focus is on termination of parental responsibility.

Court ordered termination of parental responsibility

It is possible to make an application to ask the court to terminate parental responsibility in cases that involve serious harm and abuse.

Section 4(2A) of the Children Act provides that a person who has acquired parental responsibility shall cease to have that responsibility only if the court so orders.

Reported cases in which Parental Responsibility has been successfully terminated

The removal of parental responsibility is an incredibly serious measure, and not one the court will grant lightly. Since the inception of the Children Act 1989 there have only been a handful of reported cases where parental responsibility has been successfully terminated, I should however say that these are the reported ones, there are likely many others.

The following cases demonstrate that termination of parental responsibility only happens in incredibly serious cases.

  1. The first reported judgment in which a mother made a successful application to terminate the father’s parental responsibility was inRe P (Terminating Parental Responsibility) [1994]. The test that has been laid down by the court, and now applied in future cases, is would the court grant parental responsibility based on the facts now, if parental responsibility did not already exist. As with any children matter the “welfare checklist” is applied and on this basis whether the termination of parental responsibility was in the best interest of the child.
  2. In CW v SG [2013] the child was the only biological son of both the mother and the father. The mother had two daughters from a previous relationship. The child’s father pleaded guilty to sexually abusing his stepsisters. During his time in prison, the father wrote to say he wanted contact with the child. Upon his release from prison, the mother made an application to terminate his parental responsibility.

The court held it was inconceivable that if the father made an application for parental responsibility at that time, it would be granted. Owing to the impact of the fathers abuse of the stepsisters on the family, the father could not foreseeably exercise parental responsibility in a way which was beneficial for the child. The court therefore terminated parental responsibility.

  1. Another reported case where the application to terminate parental responsibility was successful was in M v F (change of surname: terminating Parental Responsibility) [2016].

The father was accused and convicted of seriously sexually abusing his child and received a 14 year custodial sentence. Following this conviction the mother made applications seeking to terminate the father’s parental responsibility for both of their children and an order seeking to change the children’s surnames.

The court found that the application was entirely appropriate and child focused. The compelling factors were the significant harm the child had suffered at the hands of her father, both the children’s emotional needs and the risk of future harm to both children if the father exercised parental responsibility to be involved in their lives.

  1. In the matter of D v E [2021] the mother made the following applications to court:
  • A Child Arrangements Order for no contact between the child and the father;
  • A Specific Issue Order to change the child’s surname; and
  • An order to terminate the father’s parental responsibility.

The facts of the case were that the father had engaged in a course of harassment against the mother after their separation. The mother also alleged domestic violence and coercive and controlling behaviour during their relationship. Separately, the father was accused and convicted of grooming and threatening a 14 year old girl amongst other offences.

The court held that the father posed a significant risk to adolescent children and that if he continued to have parental responsibility, the father would likely use it to control and harass the mother. The court was satisfied that terminating the father’s parental responsibility was manifestly in the child’s best interests.

It should be noted that these four cases involve unmarried parents and to date there are no reported cases of a married parent having their parental responsibility terminated by an order of the court.

We know there are more unreported cases in which this occurs as our very own Ms Hussain has acted in such a case in recent years and successfully secured the termination of a Father’s Parental Responsibility in a serious case whilst acting on behalf of a maternal family member.

Parliamentary Debate and background

On Monday 7 November 2022 this topic was debated by the members of parliament led by Rob Roberts MP. This debate took place after the murder of Jade Ward by her husband.

On 26 August 2021, Jade was murdered by her estranged husband in a premeditated attack following their separation. The father was said to be controlling and coercive throughout the relationship and upon separation he made a remark to one his friends saying, ‘if I can’t have her then no one can.’ On 12th April 2022, the husband was sentenced to life imprisonment with a minimum term of 25 years in prison. Jade had four children with her husband, who had parental responsibility for all four, and those children were placed in the care of the maternal grandparents.

The maternal grandmother was completely dismayed when she was informed by the social worker that her own daughter’s killer will retain parental responsibility for all the children despite this heinous crime he committed against the family.

This meant that the father could still make applications in the family court to spend time with the children. This also meant for example that if the grandparents wish to take their grandchildren on holiday the permission from the father must be sought and the father could continue to have a say in the important life decisions of the children and worse yet, could still potentially challenge any decisions made by the grandparents.

The family created a petition pleading for a change in the law surrounding Parental Responsibility in such circumstances and the petition received over 120,000 signatures which led to the debate in parliament.

In his opening speech Rob Roberts MP highlights the pain that Jade’s family must be going through and will continue to go through as the father will retain his parental responsibility unless a court orders the parental responsibility to end.

Rob Roberts MP further stated that the current process effectively compels the family to remain in contact with the father throughout the children’s lives until the last child reaches eighteen years old. He goes onto say that as it stands this process effectively grants the convicted parent the means to continue the control and coercion of the family in the way they did prior to the murder of the victim.

 

Concluding his speech Rob Roberts MP stated that the father retaining his parental responsibility will act as a constant reminder of surely the darkest moment in the families lives and will amount to the re-victimisation of the family every time they have to speak to the father to seek his approval. Rob Roberts MP called for a change in the law to make applications to remove parental responsibility of a convicted parent in cases of serious abuse easier.

 

Recent Update

 On 3 October 2023 the Justice Secretary, Alex Chalk KC, stated that there will be a new law aimed at protecting children from harm.

The Justice Secretary confirmed that the Victims and Prisoners Bill will be amended.

The Bill will now include a section that any parent who kills a partner or an ex-partner with whom they have children with will automatically have their parental responsibility suspended upon sentencing.

This new rule will apply to a parent that is convicted of the murder or voluntary manslaughter of a person they share parental responsibility with. This rule will abolish the need for the family to apply for an order to restrict or terminate the parental responsibility through the family court and instead the decision will be examined at the sentence hearing to ensure it is in the best interests of the child.

There will, however, be an automatic exemption in cases of serious domestic abuse where the domestic abuse victim kills their abuser.

This law will be introduced to prevent the need for families to communicate with the convicted parent when making key decisions in the children’s lives.

This new law will be called “Jade’s Law”. A link to the Ministry of Justice article can be found here: Jade’s Law to be introduced to better protect children – GOV.UK (www.gov.uk)

Conclusion

Discharging parental responsibility is extremely difficult and will only be ordered in incredibly serious cases. As outlined above successful applications are rare.

Following the debate in Parliament and confirmation by the Justice Secretary we will be seeing new legislation that will make it reportedly easier to discharge parental responsibility in cases of serious abuse but we will need to await the detail of the amended Bill itself to comment further.

Here at NLS we pride ourselves on being the largest provider of domestic abuse legal aid in the UK and it is important that such serious applications are at the forefront of all parties minds and this includes Local Authorities.

To obtain case specific advice please contact us to discuss.

 

Antony Starnes

Paralegal

Luton Care Team

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