An often requested, yet misunderstood area of law
Trigger warning: Mentions of sexual abuse
In this article, I discuss the law and procedure around applications to remove an unmarried father’s parental responsibility (PR).
Firstly, I will outline the initial statutory hurdles. Thereafter, I will walk through how the Court decides whether to terminate PR. This will include a discussion of the general principles, the test to be applied and any other relevant considerations. I will then provide a brief commentary on the relevant procedure and a short conclusion.
At the outset, I must stress that solicitors should manage their client’s expectations. In practice, it is unusual for these orders to be granted.
Statutory Hurdles
As the introduction suggests, PR can be removed in the case of unmarried fathers[1]. Indeed, s. 4(2A) Children Act 1989 makes clear that anyone who acquired PR under s. 4(1) can have it removed by court order. But, does your case fall under the latter subsection?
In short, if your client’s ex-partner acquired PR:
- by registering their name on the child’s Birth Certificate,
- through a PR agreement, or
- by court order
then your case is within the ambit of s.4(1).
Once you have double-checked that your client has PR for the child, they will be in a position to remove the father’s PR[2].
If you navigate these initial obstacles, you still have to advise your client on their prospects of success. Which begs the question, will the Court find in your favour?
How the Court Decides Whether to Terminate PR
General Principles
As you would expect, the welfare of any child will be paramount[3]. Interestingly, whilst the welfare checklist at s.1(3) Children Act 1989 is not a mandatory consideration, the courts may find it to be a useful analytical framework in these applications[4]. Though no one factor in this checklist will have priority [5]. The Court will also have to consider whether making no order at all would be better than making one[6]. Do note, as the applicant, you bear the burden of proof[7] and the removal of PR must be justifiable and proportionate[8].
Respondent fathers may argue that they benefit from a presumption that PR should be continued. This is a common misconception. It is the welfare of the child that creates presumptions as to parental involvement, not the parenthood of the father[9]. In any event, s.1(6) Children Act 1989 submissions could be made to offset any ‘presumption’.
As the Court considers these general principles, they will also ask themselves, ‘if the unmarried father did not have PR, would we grant it to him?’. If the answer is no, PR will likely be removed[10].
Immediately below, I loosely outline how the Court would go about answering this question…
Would the Court Grant PR?
Currently, the case law suggests that a combination of Re H and Re S considerations will guide the Court when determining whether to grant PR[11]. However, the Re H considerations will be the focus here, as they tend to be explicitly addressed in prominent decisions regarding the termination of PR[12].
As per Re H, the Court should assess:
- The degree of commitment the father has shown towards the child;
- The degree of attachment that exists between the father and the child; and
- The father’s reasons for applying for PR (naturally, this might not always be relevant).
Lastly, the Court would have to consider s.1(2A) Children Act 1989, which states that there is a presumption parental involvement will benefit the child. However, this must be understood in conjunction with the general principles outlined in the previous section.
Commitment
What constitutes a lack of commitment? Although this is a fact-sensitive question, the Court has said that the following can indicate a lack of commitment:
- infrequent contact[13]
- a failure to apply for orders designed to reinstitute the relationship[14]
- not taking steps since convictions to address offending behaviour[15]
- engaging in behaviour which is entirely antithetic to continued safe and consistent involvement in a child’s life[16]
- failing to pay child maintenance[17]
- sexual abuse, which can wholly undermine any commitment[18].
Attachment
Much like commitment, each case will turn on its own facts. However, I would suggest examining the frequency and duration of contact. But perhaps most importantly, you should ask, how well does the child know their father and what is their view of them? If there has been little contact and the child views their father as a stranger, this will strengthen your application.
Interestingly, in D v E, there was no evidence of attachment and there was likely no memory of the father ‘by reason of the termination of contact consequent upon the father’s sexual offending’[19].
Other Relevant Considerations
Though not exhaustive, it may be useful to consider if the following case law aids your application:
CW v SG – in accordance with res judicata, convictions should be accepted as evidence of underlying facts. Unless there are exceptional circumstances[20].
A v D – the Court considered the effect a father retaining PR would have on the mother. They concluded that compelling the mother to engage with the father would be intolerable, lead to profound instability and inevitably cause deterioration in child arrangements[21].
Re P – suggests that where a father has clearly forfeited PR, the Court will be more likely to terminate it. Moreover, if there is nothing in the bundle of responsibilities that the father could exercise now or in the future for the child’s benefit, the Court may be inclined to terminate PR[22].
Procedure
The rules which govern applications to terminate PR are the same as those which govern s.4 Children Act 1989 applications for PR[23]. This means that Part 12 of the Family Procedure Rules will apply[24]. As such, the respondent’s identity may vary depending on which of the circumstances outlined under FPR 12.3 are relevant. Regardless, you will have to fill out both a C1 and a separate FM1 form.
In accordance with FPR 12.32, respondents must file and serve on the parties an answer to the application within 14 days, beginning with the date on which the application is served.
It should also be noted that PR cannot be terminated if it was granted by order at the same time a child arrangements order (CAO) was made in favour of the father, and the latter is still in force. Moreover, if a CAO stating the child should live with the father is discharged and a new CAO directing different living arrangements has been established, the father will still have PR. Unless and until the s.4 order is terminated[25].
Conclusion
Applications to terminate PR are seldom granted and solicitors should explain this to their clients to manage expectations.
Those with PR themselves can apply to remove an unmarried father’s PR in certain circumstances. When determining whether to grant the application, the welfare of the child will be of paramount importance. Nevertheless, the Court will still consider various other principles. The success of an application will likely turn on the answer to the question ‘if the unmarried father did not have PR, would we grant it to him?’ To answer this question, the Court will assess the level of commitment and attachment the father has demonstrated towards their child.
Hopefully, this has been a useful outline of the relevant law and procedure around termination of PR. All cases will turn on their own facts and so this brief article should not be regarded as legal advice. Prospective applicants should always consult legal professionals before taking action.
In the event you have any further questions, feel free to contact our clerks, who will bring your queries to my attention.
Matthew Jahanfar
1st Six Pupil at Trinity Chambers, Essex
[1] Halsbury’s Laws of England, Children, Chapter 2, Sub-Chapter 5 (ii), 147. Acquisition of parental responsibility; parental responsibility orders and agreements.
[2] Subject to certain restrictions, see s.4(3) Children Act 1989. Interestingly, with leave from the Court, a child themselves can apply to remove the PR of an unmarried father.
[3] s.1(1) Children Act 1989.
[4] D v E (Termination of Parental Responsibility) [2022] 1 FLR 582 at [31]; Re D (Withdrawal Responsibility) [2015] 1 FLR 166 at [12].
[5] Re D (Withdrawal of Parental Responsibility) [2015] 1 FLR 166 at [12]-[13].
[6] s.1(5) Children Act 1989; Butterworths Family Law Service, Children, 3A, Chapter 3D, Unmarried parents at [964].
[7] CW v SG (Parental Responsibility Consequential Orders [2013] 2 FLR 655 at [22].
[8] D v E (Termination of Parental Responsibility) [2022] 1 FLR 582 at [52].
[9] Butterworths Family Law Service, Children, 3A, Chapter 3D, Unmarried parents at [964]; Re D (Withdrawal of Parental Responsibility) [2015] 1 FLR 166 at [14].
[10] Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048 at [1053]; D v E (Termination of Parental Responsibility) [2022] 1 FLR 582 at [53].
[11] Re M (Parental Responsibility Order) [2014] 1 FLR 339 at [15]; Re H and another (minors) (adoption: putative father’s rights) (No 3) [1991] 2 All ER 185 at [189]; Re S (Parental Responsibility) [1995] 2 FLR 648.
[12] For example, Re P [1995] 1 FLR 1048 at [1052]; D v E [2022] (Termination of Parental Responsibility) [2022] 1 FLR 582 at [53].
[13] Butterworths Family Law Service, Children, 3A, Chapter 3D, Unmarried parents at [936]; Re J (parental responsibility) [1999] 1 FLR 784 at [788].
[14] D v E (Termination of Parental Responsibility) [2022] 1 FLR 582 at [53].
[15] Ibid.
[16] Ibid.
[17] Butterworths Family Law Service, Children, 3A, Chapter 3D, Unmarried parents at [936]; Re T (a minor) (parental responsibility: contact) [1993] 2 FLR 450. Do note, that the fact the father also treated the mother with hatred and violence did not assist his case.
[18] CW v SG (Parental Responsibility: Consequential Orders) [2013] 2 FLR 655 at [59].
[19] (Termination of Parental Responsibility) [2022] 1 FLR 582 at [53].
[20] CW v SG (Parental Responsibility: Consequential Orders) [2013] 2 FLR 655 at [47].
[21] [2013] EWHC 2963 (Fam) at [27].
[22] Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048 at [1053]-[1054].
[23]Family Procedure Rules Part 12, ‘Interpretation and Application of this Part’, 12.1(1)(b) and 12.2 ‘private law proceedings’ at (b).
[24] Ibid.
[25] Butterworths Family Law Service, Children, 3A, Chapter 3D, Unmarried parents at [964].
