13/10/2021
WILLS, LEGACY & PR...
In the recent case of D v E (termination of parental responsibility) [2021] EWFC 37 (referred to below as D v E) the Court terminated the Parental Responsibility (PR) of a biological father. This is an extremely rare step for the Court to take, in a case that turned on its facts.
Before exploring the termination of PR, we should discuss what this actually is and how it is obtained in the first place.
What is PR?
Having PR is different to being a parent. An individual does not need to be the child’s parent in order to obtain PR.
Section 3(1) Children Act 1989 defines PR as the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property. That individual may make decisions on a multitude of issues relating to the child such as their education, medical care and accommodation. It attempts to focus on duties towards the child rather than rights over the child. When certain decisions have to be taken about the child, all those with PR are allowed to have a say in those decisions, but do not interfere with the day-to-day parenting.
Who has PR?
More than one person can have PR at the same time.
A child's mother will always have PR for her child.
If a child's parents are married or in a civil partnership with each other when the child is born, both of them automatically have PR.
If the parents are not married or in a civil partnership with each other when the child is born, only the mother automatically has PR.
The father can acquire PR if he:
marries the mother or enters into a civil partnership with her; orenters into a PR agreement with the mother and files it with the Court; orobtains a Court Order giving him PR, is named in a Child Arrangements Order (CAO) as a person who the child is to live with, or is named in a CAO as a person that the child is to spend time or otherwise have contact and the Court decides that it would be appropriate to make a PR Order in his favour; oris registered as the child's father on the birth certificate, for a child born on or after 1st December 2003; orbecomes the child's guardian; oradopts the child.
A step-parent can acquire PR for a child if they are married to or are the civil partner of a parent of the child who has PR, and they either:
enter into a PR agreement with the parent (if only that parent has PR) or both parents (if both parents have PR), and files it with the Court; orobtain a Court Order giving them PR, for example, through a CAO.
Other individuals can obtain PR for example, through a CAO, by adopting the child or becoming their guardian.
When does PR end?
PR diminishes as child grows older, recognising that a child can make their own decisions if they have sufficient intelligence and understanding to be capable of doing this, even where the child is under the age of 18.
In some circumstances PR will only last for as long as the CAO is in force. PR can also be terminated by a Court Order.
The case of D v E highlights a rare occasion where the Court deemed it appropriate to terminate the PR of a biological father named on the child’s birth certificate.
The child was born in 2012. Her parents separated in 2014 (when the child was 16 months of age) and in family proceedings that followed, a CAO was made providing for the father to have unsupervised contact with the child twice a week with an expectation that contact would move to overnight contact in six months' time.
The father had a significant offending history and in 2015 the mother terminated contact after taking advice from the Local Authority because the father was being investigated for sexual offences against a child. He was subsequently convicted for the offences of causing or inciting a female child under the age of 16 years to engage in a sexual act and meeting a girl under the age of 16 following grooming. The father was sentenced to two years’ imprisonment and made the subject of a 10-year Sexual Harm Prevention Order. He was also convicted of other offences on the same day. On being released from prison in September 2017 he breached the terms of his licence and later in 2018 was convicted of two breaches of his Sexual Harm Prevention Order and as a result returned to prison between July 2018 and November 2018. There were further concerns about the father’s behaviour in 2019.
The father had no contact with the child since 2015.
The mother applied to the Court for:
A CAO to terminate all contact with the father;termination of the father’s PR; and a Specific Issue Order to change the child’s surname.
(The Specific Issue Order application and also the further application made by the child’s guardian, both of which were granted in this case are outside the scope of this article.)
On 19th April 2021, having considered the relevant law in relation to all four applications, the Court was satisfied that it was in the child’s best interests to make all Orders sought. In making its decision the Court took into account the impact on the child of having no recollection of her father or relationship with him, which were significant factors in the case.
The child’s welfare and best interests were the Court’s paramount consideration. In giving his judgment Mr Justice MacDonald considered a spectrum of previous cases on the issue of terminating PR, one of which stated that once obtained it should not be terminated in the case of a non-marital father on less than solid grounds, with a presumption for continuance rather than for termination. In D v E it was decided that the father continued to pose a serious ongoing risk of harm to the child.
This case demonstrates the significant considerations of a Court in deciding whether to terminate PR and each case will be decided on its specific facts.
The Court has the power to make Specific Issue Orders under Section 8 of the Children Act 1989 where there is a dispute between holders of PR on issues relating to children however, it is always preferable to reach an agreement on matters of PR without having to make an application to Court if possible.
