Restricting parental responsibility alongside a shared care order

T-D (Children: Specific Issue Order) [2024] EWCA Civ 793

This case began as private law proceedings but later included public law proceedings too.  After the parents’ separation in 2020 the children lived with Mother.  Almost continuous litigation then ensued. Father sought shared care, it was not granted initially due to size of his accommodation and distance.  

The Children were made subject to child in need plans due to the mother’s behaviour (physical altercations and numerous police reports), and later child protection plans.  The LA recommended the children move to the father’s care.  The LA were concerned the mother was controlling, uncooperative and oppositional.  Care proceedings were issued in 2023.

Adjustments were made to the arrangements for the children.  By the final hearing in February 2024 of both sets of proceedings, the two children (9 & 5) were spending time with parents almost equally.  

The parents disagreed about where the youngest should go to school.  The resolution of this was contingent on where the children would be living mostly, due to the distance between them. The school issue was vital but fell down the list of importance at the Final hearing.   The older child needed therapy but there was scepticism the mother would cooperate and engage.  

The FH was 5 days.  LA sought a Supervision order and the children to live with Father.  Father supported this, Mother opposed.  Guardian suggested shared care with order giving Father final decision if issues could not be agreed.  

HHJ Tolson KC granted a shared care order, Supervision order and an order giving the father overriding Parental Responsibility.  Father was granted a specific issue order which gave him overriding parental responsibility in the event the parents could not agree on Schooling, therapy and communications with social workers and medical professionals.  The Judge said the parents’ inability to negotiate agreements made the orders necessary to regulate the exercise of PR. He said he trusted the father to put the children’s needs first, but not the mother.  

The Mother’s appealed the Specific issue order. The appeal sought to establish whether the court had power to make such orders and whether it was wrong to make them in this case.

It was found by the Court of Appeal, that the Order was ‘an inappropriate and disproportionate delegation of overriding parental responsibility’ The Judge’s reasoning fell short of that required for such an unusual order.   The order was at odds with the expectation of equality and cooperation of a shared care order.  It was not specific enough and was unworkable in practice.

Had the judge of determined the orders in question, the mother could not have complained.  

The court has broad and flexible powers to make welfare decisions.  Court orders are an interference with the freedom of parents to make decisions about their children.  Shared care orders are usually made with a view of encouraging parents to work together.

Where an issue has become important, the court needs sound reasons for declining to decide it as in the case of the school point in this case.  The school issue and residence were connected and needed both to be adjudicated upon.  

The court undoubtedly has the power to in some cases remove PR and in other to deprive or limit a parent exercising certain rights.  These are however only usually made in extreme cases as the caselaw shows.

There was no precedent for depriving a fully involved parent of significant decision-making ability.  All issues of contention could have been resolved by the making of clear specific issue or prohibited steps orders.  

The case was remitted back to the Judge to urgently determine the school matter.

We specialise in providing advice and representation in proceedings regarding children. Please contact our Patricia Beckett at p.beckett@wilsonllp.co.uk for more details, or to arrange for an appointment, please call Mavis on 020 8885 7986

‍