“all the rights, duties, powers,
responsibilities and authority which by law a parent of a child has in relation
to the child and his property”.
Just
because you are the biological parent of a child does not necessarily mean that
you will have PR. This is particularly important for unmarried fathers who need
to ensure that they are included on the birth certificate for their child when
the birth is registered or else they will subsequently need to take administrative
or legal steps to obtain PR. Further details are set out below.
This
post is going to look at how PR is obtained and how it can be lost or
restricted with consideration of the recent case of B and C (Change of Names– Parental Responsibility – Evidence) [2017] EWHC 3250 (Fam). A link to the
Act is here
which may be helpful as there are several references to specific clauses.
Obtaining Parental Responsibility
Section 2 of the Act set out how PR is obtained
automatically. If a mother and father were married at the time of their child’s
birth then both obtain PR automatically under section 2(1). Section 2(1A)
contains similar provisions for when both parents will automatically have PR
when a child is conceived through artificial insemination or IVF treatment. If
the mother and father were not married, or the criteria for the other parent in
section 2(1A) are not met, then only the mother will have PR automatically
(section 2(2)(a)).
The father may obtain PR under section 4(1) of
the Act by either:
a) being
named as the father on the birth certificate;
b) by
entering into a “parent responsibility
agreement” with the mother; or
c) by
order of the court on his application.
Sections
4A and 4ZA contain similar provision on how people who are not the father, such
as a second female parent or step-parent can obtain PR.
I have
set out the legislative framework above as there is an interesting difference
in the approach to those parents who obtain PR automatically under section 2 of
the Act, and those who obtain it under the provisions in sections 4, 4ZA and 4A.
This is relevant in the rare circumstances where PR may be withdrawn or
restricted.
Restricting Parental Responsibility
Ordinarily,
a child will benefit from both parents having and exercising their PR. Withdrawing
or restricting PR is a significant and draconian step that will only be
considered in the most extreme circumstances to protect the child.
A
parent who has obtained PR automatically under section 2 of the Act can never
have that it taken away from them but they can have it restricted, either in
part or completely. Completely restricting PR could effectively achieve the
same result as having it withdrawn. In
order to restrict someone’s PR in this way an application must be made for a prohibited
steps order (a PSO) under section 8
of the Act. A PSO is defined in Section 8(1) of the Act as being:
“an order that no step which could be taken
by a parent in meeting his parental responsibility for a child, and which is of
a kind specified in the order shall be taken by any person without the consent
of the court”
Applications
made under Section 8 of the Act require the Court must apply the ‘welfare checklist’ set out in Section
1(3) of the Act.
“In the
circumstances mentioned in subsection (4), a court shall have regard in
particular to—
a) the
ascertainable wishes and feelings of the child concerned (considered in the
light of his age and understanding);
b) his
physical, emotional and educational needs;
c) the
likely effect on him of any change in his circumstances;
d) his age,
sex, background and any characteristics of his which the court considers
relevant;
e) any harm
which he has suffered or is at risk of suffering;
f) how
capable each of his parents, and any other person in relation to whom the court
considers the question to be relevant, is of meeting his needs;
g) the range
of powers available to the court under this Act in the proceedings in question.”
A
parent who has obtained PR through sections 4, 4ZA or 4A can have it restricted
by a PSO but can also have it withdrawn completely. An application to withdraw
PR is made under the relevant subsection in the Act. It is not an application
made under section 8 and so the Court is not obliged to apply to welfare
checklist.
The
consequence of this is that the Courts may be required to take a different
approach to what is essentially the same question depending on how the PR was
obtained in the first place.
Does it matter?
Maybe.
This could
be relevant when comparing an application to restrict PR completely when that
PR has been obtained automatically, and an application to withdraw PR which has
been otherwise obtained. The former arose in the case of B and C. The
mother argued that the father posed such a threat to the children that he
should play no part in their lives. He had, among other things, abducted the
children to Southern Iran, excluding their mother from their lives and
subjected them to physical abuse. The mother had to effect a risky rescue of
the children to return them to England. The father had obtained PR
automatically under section 2(1) of the Act.
In
addition to the application for PR to be restricted under section 8, the mother
applied for the children’s names to be changed completely and for her evidence
to be withheld from the father as it contained details about where she and the
children were living. All three such applications are highly unusual in
children proceedings and would be considered an interference with the ECHR Article
8 right to private and family life. Notwithstanding this, the Court applied the
welfare checklist as it was required to do and found that the circumstance were
such to justify the applications and found in the mother’s favour on all
points.
In
considering the mother’s request to restrict PR, Mister Justice Cobb,
considered the case of Re D (Withdrawal of Parental Responsibility) 2014EWCA Civ 315. In contrast to B and C, this case involved an
application to remove PR completely (so not a section 8 application). In his judgment, Cobb J set out twelve
principles to be drawn from Re D. This included:
“iv)That there was is no requirement upon the
court to consider the factors set out in section 1(3)(the ‘welfare checklist’)
but the court is not prevented from doing so and may find it helpful to use an
analytical framework not least because welfare has to be considered and
reasoned.
This
suggests that, even where the welfare checklist does not apply, it is likely to
have an influence on how the case is decided.
Arguably then, there will be little difference in how the court
approaches the question of withdrawing PR or restricting it completely.
However, as the Court is not bound to take the welfare checklist into account
in applications for removal of PR, it would be prudent to give consideration as
to what weight if any should be given to it in those circumstances. Should this
be the case though? This leaves us with a situation where a different test will
apply depending on the nature of the relationship between the parents and not
the relationship between the parent and the child.
Thoughts?
