Re A (Parental Responsibility)

The Court of Appeal dismissed an appeal seeking a declaration of incompatibility under the Human Rights Act 1998, holding that the Children Act 1989 scheme which prevents the revocation of parental responsibility of a father (or second female parent) where parents were married or in a civil partnership is not incompatible with Article 14 read with Article 8 of the European Convention on Human Rights. The court accepted that the distinction between married and unmarried parents engages Article 8 and gives rise to prima facie discrimination under Article 14, but concluded that Parliament’s long-established policy of prioritising marital/civil partnership status and the distinct statutory schemes for acquisition and revocation of parental responsibility are legitimately aimed and rationally connected to that aim.

The court applied the four-stage proportionality/justification test (as described in R (Tigere) v Secretary of State) and concluded: (i) the aim of preserving legal certainty and priority to marriage/civil partnership is legitimate; (ii) the distinction is rationally connected to that aim given the historical and policy context; (iii) there is no less intrusive alternative that achieves the same legislative purpose because permitting revocation for married parents would defeat the policy objective; and (iv) a fair balance is struck because the practical impact on affected mothers and children is limited by the court’s wide powers (under Children Act 1989, s 8 and s 91(14) and related measures) to prevent or neutralise a parent’s exercise of parental responsibility. The court therefore refused to make a declaration of incompatibility.

This appeal concerned an application by a mother for a declaration of incompatibility under the Human Rights Act 1998 that the Children Act 1989 is incompatible with the European Convention on Human Rights insofar as it does not permit the court to revoke parental responsibility of a married father or second female parent, while it does permit revocation in respect of certain unmarried fathers, second female parents and step-parents (see CA 1989, ss 2, 4, 4ZA and 4A). The first instance judge (Russell J, [2022] EWHC 295 (Fam)) had dismissed the application and made an extensive prohibited steps and specific issue order under CA 1989, s 8 which in practical terms prohibited the father from exercising any aspect of his parental responsibility and barred further CA 1989 applications by him without leave (s 91(14)). The mother appealed with permission.

Key facts: two children born 2007 and 2010; parents married in 2006; prolonged domestic violence, coercive and abusive conduct by the father before and after separation; children in mother’s care since separation in 2013; children placed on child protection plans in 2015; father convicted in 2018 and subject to a Hospital Order and indefinite Restraining Order; the July 2021 prohibited steps order gave the mother exclusive decision-making power on a wide range of matters and prohibited the father from contact and from obtaining information about the children.

Nature of the claim: a declaration of incompatibility challenging the distinction between married and unmarried parents as discriminatory under Article 14 taken with Article 8, because married mothers and their children cannot apply to have a married father’s parental responsibility revoked.

Issues framed: (i) whether the distinction fell within the ambit of Article 8 and constituted discrimination on a protected ground; (ii) if so, whether it could be objectively and proportionately justified by the State; and (iii) whether domestic remedies short of revocation (for example prohibited steps, specific issue orders and restrictions on further applications) are adequate to address the practical harms.

Court’s reasoning: the court accepted the Article 8/14 engagement and that parental responsibility confers a legally relevant status, but emphasised the historical context and long-standing policy of affording automatic, effectively irrevocable parental responsibility to married parents (subject to adoption). The court applied the fourfold proportionality/justification test (drawing on R (Tigere) and related authority) and concluded the distinction pursues a legitimate aim (preserving legal certainty and prioritising marriage/civil partnership), is rationally connected to that aim, presents no less intrusive alternative compatible with the legislative purpose (the distinction is binary in effect), and strikes a fair balance given the limited practical difference in many cases where the court can make orders that neutralise a parent’s ability to exercise parental responsibility. The court also noted that revocation would not affect the separate status of being a child’s biological father and that, absent convincing evidence of widespread significant adverse impact, the statutory scheme is not incompatible. The appeal was dismissed.

Appeal dismissed. The court held that, although the distinction between married and unmarried parents with respect to the availability of revocation of parental responsibility engages Article 8 and gives rise to prima facie discrimination under Article 14, the distinction is justified: it pursues a legitimate aim in prioritising marriage/civil partnership and legal certainty, is rationally connected to that aim, no less intrusive alternative would achieve the same legislative purpose, and a fair balance has been struck given the practical protective powers that courts possess under the Children Act 1989. The application for a declaration of incompatibility was therefore refused.

Appeal to the Court of Appeal (Civil Division) from the High Court of Justice, Family Division (Ms Justice Russell: [2022] EWHC 295 (Fam)). The Court of Appeal handed down judgment dismissing the appeal ([2023] EWCA Civ 689).