Here at The Transparency Project, we sometimes receive press releases from law firms.
It’s common for barristers’ chambers and law firms to promote their involvement in different cases, and sometimes on the unpopular side of those cases. It’s absolutely crucial to the rule of law and access to justice that firms are willing to take cases, however unpopular. And, if they’ve done a good job, or won a hard case, that’s something to be proud of.
Promoting firms by highlighting the family cases they’ve done is a difficult business. Success in one case does not mean success in another case with different strengths and weaknesses, although it indicates experience of the issues. Anonymity in family cases means it can be hard to promote family law teams’ successes. There are very strict rules around what can be reported about family proceedings.
We recently received a press release saying that a particular firm has successfully applied for a parent to lose their parental responsibility (PR). It’s a tragedy that a child has a parent whose behaviour means they are unsuitable to make decision about the child, and this apparently was a domestic abuse case. It’s good, though, that domestic abusers know that this is a possibility, and there are also proposals in Parliament for those who murder their child’s other parent or commit child sex offences to lose their PR without the deceased parent’s relatives having to go to family court.
Nevertheless, we can’t get rid of the feeling that it’s a little distasteful to send a press release about such a case.
The same press release also stated that the firm had achieved “one of family law’s rarest outcomes – a termination of parental responsibility order. Legal experts typically describe such victories as ‘once in a career’ achievements.”
Is it true that applications to remove PR are this rare?
But before we get to the case law on this, let’s review who can lose PR.
Who has PR?
Mothers always have parental responsibility for their child.
A child’s father will have PR if he marries or enters into a civil partnership with the mother (before or after the birth of child); enters into a PR agreement; gets a court order; or is named on the child’s birth certificate. These methods all involve either the agreement of the mother, or a court order. If a court is asked to decide whether a father should have PR, the case Re H (Minors) (Local Authority: Parental Rights) (No 3) [1991] Fam 151 tells the court to look at the father’s commitment to the child, the degree of attachment between father and child, and the father’s reasons for wanting PR. These are ways of considering whether giving him PR is in the child’s best interests.
If the mother is in a relationship with another woman, she can acquire PR in the same ways, as long as she is also a parent of the child, known as a Second Female Parent. She will have needed to meet certain criteria to become a Second Female Parent.
Others can take steps to obtain PR or get it by virtue of another order – adoptive parents; surrogate commissioning parents; people the child lives with; the local authority if the child is subject to a care order; and step-parents. There isn’t room to discuss the rules around this here.
Who can lose PR?
All of these people can have their PR terminated, except for:
- Mothers
- Fathers who are or were married or civil partnered to the mother
- Second female parents who are or were married or civil partnered to the mother
It does not matter how terrible one of these people is – they cannot lose PR unless they cease to be a parent, such as if the child is adopted or the mother is a surrogate. The justification for this difference, which we know from some challenges in the European Court of Human Rights, is that mothers and married fathers/second female parents have demonstrated commitment to the child through pregnancy or marriage.
If they turn out to be a bad parent, the court can only limit the exercise of their PR, although it can do this so profoundly that it renders the PR meaningless. We discuss this more below.
When can PR be removed from a father?
An unmarried father can lose PR, even if he got it by being on the birth certificate or by court order. The test for removal of PR is the inverse of the test for granting it – father’s commitment to the child, the degree of attachment between father and child, and the father’s reasons for wanting PR. The judge will ask him or herself ‘if I was asked to make an order giving this man PR, would I do so now?’ If the judge would not give him PR if he didn’t already have it, that suggests that it is in the child’s best interests to remove PR from him.
Is removing PR rare?
It’s certainly true that orders removing PR used to be very rare. There was only one reported case between the Children Act 1989 coming into force in 1991 and 2013. This coincided with a line of cases about the importance of PR to unmarried fathers and when orders giving unmarried fathers PR should be made. The wind was against removal.
In 2013 there was another removal case.. In 2022 there were 25 such orders made, according to the Family Court statistics published by the Ministry of Justice. In 2023 there were 11. (Our source is Family Court Statistics Quarterly: July to September 2024 – GOV.UK) 2022 was a surge year. This could be because it was the year when Jade Marsh’s husband was jailed for her murder, and Jade’s family campaigned for PR to be automatically removed in situations like this.
Most cases are not reported. Published cases (that is, those judgments ‘reported’ in law report series, or on BAILII, or via the National Archives) represent only a small proportion of all cases. Judges at High Court, Court of Appeal and Supreme Court level usually publish their judgments. Below that, at your local family court, most judges do not publish their judgments. They have been encouraged to publish more but there is a variety of reasons why they might not do so, including worry about jigsaw identification of the family, or lack of time available to anonymise a judgment before publication. Most applications for removal of PR will be dealt with by these judges, so we don’t know about them except through the statistics.
We do however have a bunch of cases at high court judge level which remove PR. For example, in C v D & Anor [2018] EWHC 3312 (Fam) the father referred to his disabled child as ‘retarded’ and used his PR to try to control the mother. His involvement was so harmful that the child was on a child protection plan. In InDG v KB & Another (Re EMP) (A Child) [2024] EWFC 12 (B), the father had raped the mother, and his involvement would be “court-sanctioned abuse of the mother.”
Restricting PR
Where it is not possible to remove PR, or where that would be a disproportionately severe outcome, it’s possible to apply for a prohibited steps order under section 8 Children Act 1989 to limit another PR holder’s exercise of their PR. This can be to stop them taking a particular step such as changing the child’s school, or it can be to stop them from making any decisions, or even from being informed about the child’s situation. For example, I obtained one of these orders for a client a few months ago. This type of application is likely to be more common than removal of PR, because it is more proportionate from a human rights perspective and because it can be used against those who cannot lose PR.
These applications sometimes reach the higher courts and get reported. Examples are where a father who was married to the mother tried to kill her and the children (H v A (No 1) [2015] EWFC 58). Another example is an order made against Sheikh Mohammed, the ruler of Dubai, in His Highness Sheikh Mohammed Bin Rashid Al Maktoum v Her Royal Highness Princess Haya Bint Al Hussein & Ors [2021] EWHC 3480 (Fam)). However, more often than not these decisions are made at your local court and only the parties will know about them – at least until someone decides to send a press release.
Image: Parent and child. Thanks to Skyscanner at Flickr
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