In the summer of 2021, Jade Ward was killed by her estranged husband Russell Marsh at their family home. He is now serving a life sentence for her murder. She leaves behind four little boys who are now being raised by her mother and other family members. This is not an isolated tragedy. Each year, many women are killed by their partners or former partners, and it is likely that many of those will have children.
Jade’s family have been told (correctly) that her killer has parental responsibility (PR) for the children and has not lost it as a result of his murder conviction. Parental responsibility is a family law concept and the fact that somebody has been convicted for murder has no effect on either their status as a parent or as a person with PR. Jade’s family have launched a petition on the government website which seeks the automatic suspension of PR in the situation where one parent has murdered the other. At the time of writing, over 118,000 people have signed the petition, meaning that it will be debated in Parliament.
We’re pleased that the reporting of this situation has been largely accurate, but we thought it might be helpful to explain the law more fully.
Jade Ward murder: Family urge ban on killer raising her children – BBC News
What is parental responsibility?
Parental responsibility is defined in the Children Act 1989 as ‘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’. Unfortunately, it doesn’t tell us what these are. However, they are generally accepted to give the right to make certain decisions about the child’s upbringing, such as what religion they practise, what school they go to, what medical treatment they have, where they live and who may see, and status in certain legal situations such as care proceedings.
Most of the things that we think of as the consequences of being a parent are actually the consequences of PR. But:
- not all parents have parental responsibility; and
- some parents can lose parental responsibility while others cannot; and
- people other than parents can have parental responsibility for a child.
Who has parental responsibility?
The child’s mother always has PR unless she ceases to be the mother (for example if a child is adopted or if she is a surrogate who gives up her child to the commissioning parents). The mother cannot lose PR however bad a parent she is. Even if the child is in care as a result of abuse, she will still have PR.
The child’s father or a second female parent (the mother’s lesbian partner where they use a fertility clinic) will have PR if married or civilly partnered to the mother at the time of the child’s birth or afterwards. A married father/second female parent cannot lose parental responsibility.
A father who is not married to the mother does not get PR automatically, and nor does the mother’s unmarried female partner. They have to acquire it. The most common way of doing so is by being named on the child’s birth certificate as the father or second female parent. Other ways of acquiring PR are court order or a written parental responsibility agreement with the mother (there is a specific court form for that but it does not need actual court proceedings).
If the child lives with someone under a live-with order (previously known as a residence order) that person will have parental responsibility for the child for the duration of the order. If the live-with order is for the unmarried father or second female parent, they will get parental responsibility until the child is 18 or the court removes it, and not just for the duration of the order.
Other people can get parental responsibility. For example, if a child is in care the local authority as an organisation has parental responsibility for the child. Courts can make parental responsibility orders when they make contact orders too, although that is not automatic. Stepparents can get parental responsibility, and special guardians will get it as a consequence of a special guardianship order.
Who can lose parental responsibility?
All of these people can lose parental responsibility except the mother, and a father or second female parent who is or was married/civilly partnered to the mother.
This means that in Jade’s case, because she was married to her killer, he has the kind of PR that cannot be lost unless he ceased to be a parent because the children become adopted. Short of adoption, the court has no power to remove parental responsibility from him. Understandably, this has caused distress to Jade’s family. It means that they will have to consult him about such things as which school the children go to, and their medical treatment (and he will have the right to their medical and educational records), and they will need his permission to take the children abroad on holiday.
The fact that his parental responsibility cannot be removed does not mean that it cannot be limited. First of all, if an issue arises then on a situation-by-situation basis the court can make an order dealing with that issue. For example, it can decide where the children go to school if there is a dispute between Jade’s family and her killer.
Jade’s family argue that this is onerous. They shouldn’t have to do this, and that it can be time-consuming, expensive, and an added stress.
It is, though, possible to just go to court once to obtain an order that limits all exercise of parental responsibility. This would mean that while Russell Marsh still had PR, he could not use it for any purpose. In the past, courts have made very wide-ranging orders preventing anyone from giving information to the dangerous parent and saying that the children’s carer does not have to seek their permission about anything at all. This happened for example in the case H v A in 2015, which involved a father who had driven a flaming car into the family home in an attempt to kill the mother and children. He too was married to the mother and so his kind of parental responsibility could not be removed. You can see what order the judge made at the end of the case report.
Suspending Russell Marsh’s PR as Jade’s family proposes or limiting his PR would not prevent him from making an application, as fathers do not need permission to make an application. The judge would need to make an order that Russell could not make an application without a judge saying it was ok, known as a section 91(14) order. Jade’s family would not be told about it unless the judge said he could make the application, so it would not cause them stress if there were applications that the court didn’t think had some realistic prospect of success or which would disrupt the children’s lives. This is also part of the judge’s order in the H v A case.
Since that case, legislation has been passed to amend section 91(14) Children Act 1989 to make it clear that courts can use that section to limit court applications in cases of domestic abuse and a new section has been added that says that the applicant would need to show a material change in circumstances since the order was made, to be allowed by the judge to proceed with the application.
Why the difference between married and unmarried fathers?
In a human rights case called McMichael v UK, the European Court of Human Rights accepted the government’s argument that there was a good reason for treating married and unmarried fathers differently. When defending the case, the government argued that ‘the aim of the relevant legislation, which was enacted in 1986, is to provide a mechanism for identifying “meritorious” fathers who might be accorded parental rights, thereby protecting the interests of the child and the mother.’ In another human rights case Smallwood v UK, the European Court of Human Rights again accepted that the fact that some fathers could have their parental responsibility removed, but no mothers could, was also justifiable.
When might a court remove parental responsibility from a father?
If a court has the power to remove parental responsibility from a parent, because they are an unmarried father or second female parent, then they would do this by looking at whether or not that parent is capable of exercising parental responsibility in a way that benefits the child. As part of this, they look at the level of commitment the father has shown to the child, the level of attachment between them, and the father’s motives for applying (for example, is he motivated by a genuine care for the child or is he purely trying to exercise power and control over the mother). These are the same things the court considers if it’s being asked to give someone PR.
In the case of a father in prison for a long time, it is going to be extremely difficult for him to exercise his parental responsibility. In Marsh’s case, his conduct has been directly harmful to the children who have lost their mother. Forcing the children’s carers, who are now the only stability they have, to have to engage with Jade’s killer may distress them and in turn distress and destabilise the children. For these reasons, we think that if an application was made to limit his parental responsibility it would be granted.
An alternative route would be for them to seek a special guardianship order over the children. This means that their PR would trump his, although they would still need to consult him on some things and would not be able to do certain important things without his consent. It could be coupled with a section 91(14) order to limit his ability to do this.
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