The two children were born to married parents and their father had parental responsibility for them both pursuant to section 2 of the Children Act 1989. During the marriage, the father was abusive to the mother. The parents separated with the children remaining in the care of the mother. The father’s abusive and threatening behaviour towards both the mother and the children continued with the result that the children were placed on child protection plans by local services, with social workers advising that the father ought not to be permitted any contact with them. On police advice, the mother and children move to a confidential location and the children’s names were changed. The mother applied to the court for a declaration under section 4 of the Human Rights Act 1998 that the statutory scheme of the 1989 Act was incompatible with article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, read with article 8, Convention, because it discriminated against married parents (or those in a civil partnership) with respect to the court’s power to revoke parental responsibility because, unlike the position with unmarried parents, there was no power to revoke the parental responsibility of a father who was married to the mother at the time of the children’s birth. The judge refused to make the declaration sought but did make specific issue and prohibited steps orders in terms which, inter alia, prohibited the father from having any contact with the children and gave to their mother the right to exercise parental responsibility exclusively, and without reference to the father, thus in practical terms removing his right to exercise parental responsibility.
On appeal by the mother—
Held, appeal dismissed. (1) It being undisputed that family rights under article 8 of the Human Rights Convention were engaged, and that a distinction was drawn between a married father and an unmarried father arising from the inability to apply to revoke the parental responsibility of the former, there was therefore prima facie discrimination based on marital (or civil partnership) status, which required to be justified (paras 84, 87).
(2) The difference in treatment served the legitimate aim of prioritising the state of marriage, and more recently civil partnership, and ensuring clarity over legal authority and responsibility for a child within the marital family by maintaining the status of married fathers. That legitimate aim was plainly capable of justifying the limitation of a fundamental right and the measure was rationally connected to that aim. By contrast, the more recent ability to grant, but also to revoke, parental responsibility for unmarried fathers was not connected with the legitimate aim of prioritising the creation of, what were hoped to be, stable and enduring family relationships within marriage or civil partnership but had the separate aim of, first, allowing parental responsibility to be afforded to some such fathers, and, secondly, of encouraging that to take place by agreement, court order or by birth certificate, by allowing for the responsibility to be revoked at a later time if that was justified. Consequently, the justification for there being a difference in treatment for married parents was not only the significance ascribed to them being married, but also the justification for there being a separate scheme for acquisition and revocation in the wider social setting within which unmarried parentage might occur, which scheme could be separately objectively justified (paras 84, 87, 88, 91–93).
(3) As the element of discrimination arose solely from the ability of a mother or child to apply to revoke parental responsibility of an unmarried father, it was binary, in that either the same facility was introduced for married fathers, or it was not. Accordingly, there was no “less intrusive” measure which could achieve the legitimate aim. On the issue of whether a fair balance was struck overall, it was to be taken into account that the negative impact on a family that arose from an inability to apply to revoke parental responsibility was minimal, given that Parliament had empowered the courts to empty a father’s parental responsibility of all content and to prevent him from making future applications to the court, and given that the status of being the children’s father would remain and could not be revoked, save by adoption or parental order. That negative impact was comprehensively outweighed by the overall benefit to the community of maintaining the priority that was attributed to marriage and civil partnership and, accordingly, the statutory scheme struck a fair balance between the rights of the individual and the interests of the community. Consequently, the difference in the treatment of unmarried and married fathers was justified. It followed that the mother had failed to establish that the scheme within the Children Act 1989, particularly the absence of a power for the court to revoke the parental responsibility of a married father, was in breach of articles 8 and 14 of the Human Rights Convention, and the application for a declaration of incompatibility failed accordingly (paras 94, 95–101, 103, 107, 108, 109).
Caoilfhionn Gallagher KC and Christopher Barnes (instructed by ITN Solicitors) for the mother.
Mark Jarman KC and Maria Stanley, solicitor (instructed by and of CAFCASS Legal) for the children, by the children’s guardian.
Ben Jaffey KC, Carine Patry KC and Alexander Laing (instructed by Treasury Solicitor) for the Lord Chancellor and Secretary of State for Justice.