Re A (Parental Responsibility)

The statutory distinction between married and unmarried parents concerning revocation of parental responsibility is compatible with articles 8 and 14 of the European Convention on Human Rights. Although the distinction constitutes prima facie discrimination based on marital or civil-partnership status, it is objectively justified.

Parliament may protect the permanent parental status arising within marriage or civil partnership while maintaining a separate, revocable scheme for unmarried parents. Courts can adequately protect children and resident parents by orders preventing the holder from exercising any aspect of parental responsibility and from making further applications. The residual status may remain, but its practical and psychological effects carry minimal weight where its exercise has been comprehensively neutralised.

Two children were born while their parents were married, so their father acquired parental responsibility under the Children Act 1989. Following sustained violence, abuse, harassment and coercive control by the father, the High Court made orders permitting the mother to exercise parental responsibility exclusively. The orders prevented the father from exercising any aspect of his responsibility, obtaining information, contacting the children or making further applications without permission.

The mother nevertheless sought a declaration that the absence of power to revoke a married father’s parental responsibility was incompatible with articles 8 and 14 of the European Convention on Human Rights. Russell J refused the declaration in [2022] EWHC 295 (Fam). The mother appealed, supported by the children’s guardian. The central issue was whether the difference between married and unmarried parents concerning revocation of parental responsibility amounted to unjustified discrimination.

1. Appeal dismissed. The inability to apply for revocation of a married father’s parental responsibility produced a difference of treatment based on marital or civil-partnership status. The matter fell within article 8, so prima facie discrimination under article 14 was established. The distinction was nevertheless objectively justified.

2. The distinction had the legitimate aim of maintaining the priority which family law has long attributed to marriage and civil partnership, and of ensuring clarity and permanence in the legal authority and responsibility of parents within that family structure. It was rationally connected to that aim. The separate scheme allowing unmarried fathers to acquire, and subsequently lose, parental responsibility served different social circumstances and objectives.

3. No less intrusive measure could preserve the intended permanence of parental responsibility within marriage. Permitting revocation for married parents would defeat that aspect of the policy. The choice was binary: either revocation was available or it was not.

4. A fair balance had been struck. Under section 8 of the Children Act 1989, the court could make prohibited-steps and specific-issue orders which removed every practical ability to exercise parental responsibility and vested exclusive decision-making in the other parent. Section 91(14) could prevent further applications. Such orders afforded adequate practical protection even though the formal status remained.

5. Parental responsibility conferred a status distinct from biological parenthood, but its weight was flexible and depended substantially on whether it could be exercised. Once all capacity for exercise had been removed, the remaining status was an empty vessel carrying minimal practical or psychological weight. The separate and irrevocable status of being the child’s father also remained.

6. The limited adverse consequences for affected mothers and children were comprehensively outweighed by the community benefit of maintaining Parliament’s policy concerning marriage and civil partnership. The statutory scheme therefore did not breach articles 8 and 14. The application for a declaration of incompatibility under section 4 of the Human Rights Act 1998 was refused.

1. Court of Appeal (Civil Division): The mother’s appeal was dismissed and the application for a declaration of incompatibility was refused: [2023] EWCA Civ 689 .
2. High Court, Family Division: Russell J dismissed the mother’s application for a declaration that the statutory scheme was incompatible with articles 8 and 14, while making extensive orders neutralising the father’s exercise of parental responsibility: [2022] EWHC 295 (Fam) .