Terminating and Restricting Parental Responsibility

The issue of terminating parental responsibility arose when I acted pro bono for a mother through Advocate.  

She needed help because the father of her children was in prison having been convicted of seriously sexually assaulting their eldest daughter.  The prospect of him continuing to have any role in her children’s life was - quite understandably - anathema to her. 

This article looks at the circumstances in which it is appropriate for parental responsibility to be removed or restricted in the interests of children, and some upcoming changes in the law.

Terminating parental responsibility 

Parental responsibility can be terminated in the case of unmarried fathers.   It cannot be removed from mothers or married fathers (unless the child is adopted).^[1] 

This anomaly arises from a key difference between sections 2 and 4 of the Children Act 1989. 

Section 2(1) provides that where a child’s father and mother were married or in a civil partnership with each other at the time of their child’s birth, they shall each have parental responsibility for the child.    That gives automatic parental responsibility to mothers and to married fathers.   There is no provision in section 2 to remove parental responsibility conferred by section 2(1).   

By contrast, unmarried fathers can only acquire parental responsibility under section 4(1) of the Children Act 1989 in one of 3 ways: registration as father on the birth certificate; through a formal parental responsibility agreement; or by court order.   

Unlike with automatic parental responsibility under section 2,  section 4(2A) provides that “A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.”  So parental responsibility can be removed from unmarried fathers by court order.

Why the difference? In part it arises from the wish to uphold in law the importance of marriage and its corollary, some unpleasant vestigial attitudes to unmarried parenthood. 

A more charitable explanation might be it imposes a formal requirement (whether marriage or one of the three grounds in section 4(1) ) before a father acquires parental responsibly, so it is clear who has it and who does not.   Such a requirement is unnecessary for the mother, whose identity rarely in doubt.

Whatever the reason, on the face of it the discrimination law between married and unmarried fathers and between mothers and some fathers is hard to reconcile with modern discrimination law which prohibits discrimination on both grounds of sex and of marital status.   Hard to reconcile though it may be, the Court of Appeal nevertheless managed to in 2023, when it refused a declaration of incompatibility with articles 8 and 14 of the EHCR^[2].

Restricting parental responsibility

Where the law does not allow parental responsibility to be terminated, it can nonetheless be restricted to an extent that, though the married father (or mother) legally retains parental responsibility, in practice it is an empty vessel and in reality they cannot exercise it to any extent at all.

In Re A (Parental Responsibility) [2023] EWCA Civ 689 the President, Sir Andrew MacFarlane said:

“Irrespective of whether or not there is a statutory power to bring parental responsibility to an end, in every case the court may control and limit a parent's ability to exercise parental responsibility through the making of prohibited steps orders, and may enhance the ability of the other parent to exercise parental responsibility with respect to specific issues…

Whilst a prohibited steps order and/or a specific issue order may normally be made to regulate one or more aspects of the exercise of parental responsibility, it is accepted that, where the facts of the case justify it, the court may make a combination of orders which have the effect of prohibiting a parent from taking any step in the exercise of his or her parental responsibility and clothing the other parent with the exclusive right to exercise parental responsibility without reference to any other person who holds parental responsibility.”

Appropriate for serious cases only

Terminating or restricting parental responsibility is appropriate only in serious cases. In  Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048, Singer J said:

"I start from the proposition that parental responsibility – both wanting to have it and its exercise – is a laudable desire which is to be encouraged rather than rebuffed. So that I think one can postulate as a first principle that parental responsibility once obtained should not be terminated in the case of a non-marital father on less than solid ground, with a presumption for continuance rather than for termination.

The ability of a mother to make such an application therefore should not be allowed to become a weapon in the hands of the dissatisfied mother of the non-marital child: it should be used by the court as an appropriate step in the regulation of the child's life where the circumstances really do warrant it and not otherwise."

Typically, cases where parental responsibility should be removed or restricted are those in which there has been very serious misconduct on the part of the (usually) father, typically murder, manslaughter, other serious violence, and rape or serious sexual abuse. 

Test for removal of parental responsibility.

In Re P (supra) which was affirmed in CW v SG (Parental Responsibility Consequential Orders) [2013] EWHC 854 (Fam), Baker J (as he then was) as still being the appropriate test to follow the following important questions were identified:

• the nature of the attachment and degree of commitment
• whether the father would be granted parental responsibility would if he didn’t have it already
• whether the father could exercise parental responsibility in a way which is beneficial to the children 

In Re B and C (Change of Names: Parental Responsibility: Evidence) [2017] EWHC 3250 (Fam) Cobb J highlighted the following factors when looking at removal of parental responsibility:

• the factors relevant to grant of PR (the degree of commitment which the father has shown to the child, the degree of attachment which exists between the father and the child and the reasons of the father for applying for the order) are relevant when considering whether to revoke or limit the exercise of PR
• the significance of parenthood of a married or an unmarried father should not be under estimated.  The parental responsibility which attaches to parenthood may bring added commitment to the child which would be likely to be to the child's benefit
• Article 8 of the European Convention is engaged
• the order is draconian
• it is vitally important to encourage the exercise of parental responsibility by fathers and children have a right to that benefit

In Re D (Withdrawal of Parental Responsibility) [2015] 1 FLR 166, CA the Court of Appeal said in cases were parental responsibility is being terminated:

• The child’s welfare is the Court’s paramount consideration (section 1 and 105 (1) of the Children Act 1989)
• The Court is not required to apply the welfare checklist (s. 1(4) CA 1989) but it provides a useful analytical checklist
• The Court also has to consider section 1(5) of the Children Act - whether making an order is better for the children than making no order at all.

Where the Court is considering restricting the exercise of parental responsibility rather than terminating it, the welfare checklist will apply because that restriction is done through through making a prohibited steps order, which as a section 8 order requires the application of the welfare checklist.   In practice it is doubtful that much will turn on the technical distinction.

Reform

In 2021 Jade Ward was brutally murdered by her ex partner.   As they’d been married he had parental responsibility for their 4 children, who went to live with Jade’s parents after her death.   Their father sought to exercise parental responsibility, and as a result Jade’s family campaigned to change the law, known as Jade’s law. 

That campaign led to section 18 of the Victims and Prisoners Act 2024 which will insert new provisions into the Children Act 1989 to automatically suspend the exercise of parental responsibility in cases where one parent murders another or is convicted of their manslaughter ongoing grounds of loss of control or diminished responsibility.   The order is then reviewed by the Family Court applying welfare principles, without the need for the carers to make an application.

The new section 10A requires the Crown Court to make a prohibited steps order: 

that no step of any kind which could be taken by a parent in meeting their parental responsibility for a child may be taken by the offender with respect to the child without the consent of [the Court]

Section 10B will require the relevant local authority to apply to Family Court within 14 days for a review of the Crown Court order order suspending parental responsibility.     The duty to make the application is put on local authority to shield family, but the process does give the father an opportunity to be heard on the welfare issues.

These provisions are enacted, but have not yet come into effect.  Its not yet clear when they will be brought into operation.

A move to extend Jade’s law to cases of serious sexual abuse was rejected during the passage of the Victims and Prisoners Act,  but in May 2024 the former Lord Chancellor Alex Chaulk KC tabled an amendment to the Criminal Justice Bill which would have applied Jade’s law to parents convicted of serious sexual offences.   

That bill didn’t pass before parliament was dissolved for the general election, but in May 2025 the new Labour Government announced plans to implement that reform in the new Victim and Courts Bill currently going through parliament.   As currently drafted, the section 3 of the bill imposes a duty on the Crown Court to make a prohibited steps order where it passes sentence of 4 years imprisonment or more for a serious sexual offence committed against a child for whom the offender has parental responsibility.  As with Jade’s Law there will follow a review in the Family Court on application by the local authority.  If passed, those provisions will be new sections 10C and 10D of the Children Act 1989.

^[1] Second female parents are treated like fathers:  their parental responsibility can only be removed if they were unmarried at the time of birth.

^[2] see Re A (Parental Responsibility) [2023] EWCA Civ 689 - a married mother arguing she was discriminated against by virtue of being married because she couldn’t apply to terminate the father’s PR, whereas she could have done had she been unmarried.