Re A (Parental Responsibility) [2023] EWCA Civ 689

The president of the Family Division, Sir Andrew McFarlane, recently delivered a judgement in respect of parental responsibility, specifically focusing on the acquisition and revocation of the same, and the distinction between married and unmarried parents that is made within the Children Act 1989 (‘CA 1989’).

The Judgement talked to the statutory scheme of the CA 1989, highlighting that a child’s mother will have parental responsibility in all cases, regardless of whether she is married or not (s.2). An unmarried father or a second female parent may acquire parental responsibility by being registered on the birth certificate, making an agreement with the mother or by obtaining a parental responsibility order (ss 4(1) and 4ZA(1)). Likewise, a step parent may acquire parental responsibility by making an agreement with the mother or by obtaining a parental responsibility order (s 4A(1)).

Whether or not parental responsibility can be revoked depends upon the method of acquisition. The parental responsibility of any person is extinguished by adoption (s 46(2) Adoption and Children Act 2002). Further, the Court has the power to bring the parental responsibility of unmarried fathers, unmarried second female parents or step-parents to an end (ss 4(2A), 4ZA(5) and 4A(3) CA 1989). However, where parents are married, or in a civil partnership, there is no power to revoke parental responsibility of a father or a second female parent.

In the present case, the appellant mother applied for a declaration of incompatibility under the Human Rights Act 1998 (‘HRA 1998’), asserting that this distinction adversely discriminates against unmarried mothers and those of their children.

The Court held that irrespective of whether or not there is a statutory power to bring parental responsibility to an end, in every case the court may control and limit a parent’s ability to exercise parental responsibility through the making of prohibited steps orders, and other s 8 orders, and/or by a prohibition on further court applications (s 91(14) CA 1989), and may enhance the ability of the other parent to exercise parental responsibility with respect to specific issues [10].  It was accepted by the Court that limiting a person’s status, so as to prevent them from exercising parental responsibility does not remove the status itself. However, in respect of protecting the mother and children, the fact that the Court can make orders to limit and remove any value of that status, is an adequate remedy. The remaining status of being a holder of parental responsibility in circumstances where the same has been limited or removed, was described as a being an ‘empty vessel’ [96].

It was not disputed that the issue raised by the appellant mother engages with family life rights pursuant to Article 8, and that there is prima facie discrimination pertaining to marital (or civil partnership) status [84]. The Court went on to apply the four stage test as set out in Bank Mellat, Tigere and McLaughlin in justifying the identified discrimination.

The Court held that the limitation and discrimination is capable of justification, given that it has the legitimate aim of prioritising the state of matrimony and civil partnership over less formalised relationships, which ‘has been maintained by Parliament as a central tenet of Family Law’ [88]. Further, that ‘any measure which allows for that status to be reduced would defeat the object of the policy’ [94]. The statutory scheme which applies to the acquisition and revocation of parental responsibility in respect of unmarried parents, can be separately objectively justified, with the Court talking to the wider social setting and the spectrum of relationships which may lead to a child being born to unmarried parents [92, 93].

The Court concluded that the distinction in treatment between unmarried and married fathers, is justified, given that each scheme is justified on its own terms, with different aims and being ‘designed to meet different circumstances’ [100]. The Court further highlighted that the inability to apply to revoke parental responsibility in respect of a married father, is ‘outweighed by the overall benefit to the community in maintaining the priority that is attributed to marriage and partnership’ [101]. The Court subsequently dismissed the appeal.

The full judgement can found here

Scarlett Gilmartin

Pupil Barrister

Atlantic Chambers