There are various routes by which a person can acquire parental responsibility (“PR”) for a child. But what are the options for removing or restricting PR before it automatically ends once the child reaches 18?
In any case, regardless of how PR was acquired, the welfare of the child is the Court’s paramount consideration when determining whether PR should be either discharged or restricted. That is the only test to be applied. Other factors, such as the commitment shown towards the child or the degree of attachment that exists with the child, may be relevant on the facts of a particular case and may be considered by the Court within the overarching question of welfare. The Court may also consider whether PR would be now be granted to an unmarried father if that was not something already held – if it is “inconceivable that it would now be granted to him” then this is a factor that should be taken into account when considering an application for termination (CW v SG (Parental Responsibility Consequential Orders) [2013] EWHC 854 (Fam), upheld in Re D (Withdrawal of Parental Responsibility) [2015] 1 FLR 166). However, case law is clear that these other factors are not to be taken to be a substitute test to be applied (Re M (Parental Responsibility Order) [2013] EWCA Civ 969; Re D (Withdrawal of Parental Responsibility) [2015] 1 FLR 166).
The mother who gives birth to the child will always automatically hold PR. The same is true for a parent who is married to or in a civil partnership with the mother at the time of the child’s birth. The only way that PR can be lost for either the birth mother or the natural father is if the Court makes an adoption order or a parental order. The question then becomes one of how PR can be restricted or limited, and whether this restriction/limitation can effectively terminate the PR. Generally any Prohibited Steps or Specific Issue Order will be limited to a discrete PR issue. Absolute bars on the exercise of PR in these situations will be exceptional and s.8 orders are not intended to be used as a way to award exclusive decision making powers to one parent. With that said, it is possible for wardship to be used to control, delegate and restrict PR and to award one parent with exclusive decision-making power when necessary (A London Borough v X [2019] 12 WLUK 450; Re K [2011] EWHC 4031).
The issue is somewhat different for parents who are not married or in a civil partnership when the child is born or for a step-parent. In each of those circumstances PR can be acquired either by agreement or by court order, and it should be remembered that PR gained through the making of a Child Arrangements Order naming the parent as a person with whom the child lives cannot be revoked while that CAO remains in force. PR that has been gained through agreement or order can, however, be lost by court order. This will require a careful consideration of the paramountcy test and a balancing of the competing Art.8 interests of the child against those of the parents, with the child’s best interests overriding those of the parent.
Once acquired there is a presumption for continuation rather than termination of PR (Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048). Discharge or termination of PR is very much the exception rather than the norm. Situations where PR has been terminated typically involve serious, and often repeated, abusive and harmful behaviour. This does not have to be limited to serious physical or sexual abuse but can extend to emotional abuse (C v D [2018] EWHC 3312 (Fam)). The termination of PR in these situations is viewed as a way to protect not only just the child but often also the mother from continued harm (e.g. D v E and another [2021] EWFC 37). In cases where there is a serious risk of harm to the child and mother, and any application is likely to have an impact on the wellbeing of the mother and therefore the stability and security of the child, it may be prudent to also consider applying for a s.91(14) bar.
Written by Jess Purchase, Consultant Barrister, Unit Chambers