Alexandra Wilks considers the Court of Appeal case

At her previous firm, Alexandra represented the Appellant Mother in this case at first instance and through to the Court of Appeal hearing before the President of the Family Division. The judgment was subsequently handed down last month.

The Appellant’s primary application was for protective relief and extensive curtailment of the respondent father’s exercise of his parental responsibility, against a background of serious domestic abuse (in the form of prohibited steps orders and specific issue orders under Children Act 1989 and other injunctive relief).

The Appellant Mother also applied  for and invited the court to consider making a declaration of incompatibility under section 4 of Human Rights act as it is not possible under the Children Act 1989, to revoke the parental responsibility of a married father.  As a result, the Lord Chancellor and Secretary of State for Justice intervened in the matter and opposed the making of a declaration of incompatibility.

The Appellant had been the victim of serious domestic abuse during the parties’ marriage and after separation. The factual background is described in detail in the judgment of Russell J ([2022] EWHC 295 (Fam) . The Father was physically, emotionally, psychologically and sexually abusive towards the Mother and more generally behaved in a controlling and coercive manner towards her. This continued post separation whereby the Mother was subjected to a  disturbing campaign of harassment and stalking. On police advice, the Mother and her children were moved to a confidential location so as to protect themselves from the Father, resulting in a loss of their familiar home, friends and school. In addition, the children’s names were changed.

In the first instance judgment, Russell J made extensive findings of violent, abusive and coercive/controlling behaviour by the father towards his wife and the children, both before and after separation. Russell J granted the substantive orders sought by the Mother at first instance, so as to curtail the exercise of the Father’s parental responsibility. The court declined to make a declaration of incompatibility at first instance and this issue which was subsequently re-considered by the Court of Appeal.

On appeal, the Mother argued that the statutory scheme was incompatible with her right to a private and family life under Article 8 ECHR and taken together with Article 14, this discriminates against married mothers and children of married parents, and that this cannot be justified as a distinction simply based on birth status. It was submitted that  a class of vulnerable children and their mothers are barred from obtaining recognition from the state, that their father acted in a way that justifies removing his parental responsibility and that a suite of orders curtailing parental responsibility is not the same. That recognition is conversely available for the children of unmarried fathers and their mothers. The Mother’s position was supported by the Children’s Guardian.

The Lord Chancellor invited the court to dismiss the Mother’s appeal. The Lord Chancellor’s arguments focused initially on policy arguments as to why Parliament has retained the distinction attached to the status of ‘being married or in a civil partnership’ within the legislative scheme. The Lord Chancellor invited the court to consider the statutory scheme as a whole and the policy decision not to give automatic parental responsibility to all unmarried parents and that the Children Act 1989 had been drafted in such a way as to allow revocation so as to encourage mothers or courts to agree to the granting of parental responsibility to unmarried fathers. The Lord Chancellor submitted that the process of acquisition and revocation of parental responsibility were therefore inextricably linked and there is a different scheme depending on marital status which can be justified.

On this occasion, the court declined to make the declaration of incompatibility and the appeal was dismissed. The judgment looks at  the historical context and development of the status of parenthood under the law in England and Wales and the recommendations of the Law Commission reports from the 1980s and the introduction of the Children Act 1989 – this includes the intention of Parliament for parental responsibility to be permanent for mothers and married fathers/parents or those in civil partnerships  , with such permanency only removed on adoption.

The court evaluated the importance of the   status of holding parental responsibility, in considering the emotional and psychological impact on the mother and children in the father retaining parental responsibility and concluded that this would not be dissimilar from knowing that the father will always be the biological father and this would not go away.

The court concluded that it was a  legitimate aim to seek to maintain the status of married fathers and this aim was plainly capable of justifying the limitation of a fundamental right. It accepted the Lord Chancellor’s argument that there is justification in having separate schemes, subject to marital status to support that aim and there is no less intrusive way of achieving this. The court considered that the Mother was still able to obtain an adequate remedy in applying for orders to limit the parental responsibility of the father so that parental responsibility is but an ‘empty vessel’ and he cannot exercise parental responsibility.

One of the concluding paragraphs summarises that “the difference in the treatment of unmarried and married fathers is justified by the long-standing principle that married fathers (and mothers) should have irrevocable parental authority/responsibility for their children”.

With shifting cultural and social attitudes and the fact that there remains no European cases specifically looking at this issue, it will be interesting to observe whether the discussion now ends here or whether the courts will be forced to reconsider this issue again in the not so distant future.

The full Court of Appeal judgment can be found here https://caselaw.nationalarchives.gov.uk/ewca/civ/2023/689 and First Instance judgment here  https://caselaw.nationalarchives.gov.uk/ewhc/fam/2022/295

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