Parental responsibility is defined 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”. S 3 (1) Children Act 1989.
S 4 of the Act sets out the circumstances in which parental responsibility is acquired. That is not the focus of this article, the principles being well-known to practitioners and very easily accessible for lay parties.
In my practice issues relating to the exercise of parental responsibility arise often, but the obligations arising from shared parental responsibility are often misunderstood.
The starting point is that parents that share parental responsibility have a duty not only to consult with each other in respect of significant steps in respect of their children’s upbringing (for example, although not exclusively, matters of health, education and religion). While there is a clear responsibility to ensure that the other parent is kept informed in respect of important matters relating to their children, those decisions should be made by agreement or otherwise determined by the court upon application. Presenting the other parent with a decision already taken as a fait accompli is not consultation and rarely sufficient.
In a recent Court of Appeal case, Re T-D [2024] EWCA Civ 793, the court considered the question as to the extent to which it might be appropriate for the court to allow one parent to exercise parental responsibility unilaterally. The judgement, which was delivered by Peter Jackon LJ (and agreed and approved by Andrew McFarlane P and Warby LJ) included a helpful overview of previous cases where the court had considered the issue, although as will be seen in more extreme circumstances.
The children were aged 9 and 5 and were dividing their time equally between their separated parents. The trial judge had granted overriding parental responsibility to the father in 3 respects.
He had granted a specific issue order providing that with regard to specified questions arising (see below) in connection with parental responsibility for either or both children, they should be “determined by the father in the event of disagreement with the mother”.
Those specified issues related to schooling (including which schools they should attend, and who should attend parents’ evenings and other events), all questions relating to future therapy (including the basis upon which any such therapy was to be provided and whom should provide it) and all questions relating to interactions with social workers and medical professionals (including what might be said to them about the children and to the extent to which they might be involved in the children’s lives).
The order did not absolve the father of the responsibility to consult with the mother in relation to decision making in respect of these and other matters regarding the children’s upbringing, but with reference to the matters specified, he was allowed to make the decisions in the event of disagreement.
Although providing the father with that overriding parental responsibility, the order included provision allowing either parent to make applications to the court in respect of issues arising, including those specified events, to all intents and purposes therefore granting the mother some recourse in the event of disagreement with the father.
The issues for the Court of Appeal to determine were firstly whether the trial judge had the power to grant an order for overriding parental responsibility and secondly whether he was right to do so in the circumstances of the case.
The facts of the case can be found in the judgment and are only briefly summarized here.
The proceedings had commenced in the private law arena but were concluded within public law proceedings.
There had been significant acrimony and police and Local Authority (“LA”) involvement.
The LA had raised concerns in respect of oppositional and controlling behavior by the mother and refusals to engage with plans. The mother had provided “almost complete lack of engagement” in respect of reports commissioned from a psychologist and an Independent Social Worker (“ISW”).
The parents had disagreed in respect of the school to be attended by the younger child. There was an application before the court that the trial judge did not specifically determine.
The older child required therapy and there was scepticism about the mother’s willingness to cooperate with it and her determination to control access to the children by social workers wishing to undertake direct work with them.
At the final hearing the LA’s plan was for the children to live primarily with the father, although the Guardian was advocating a shared care arrangement with an equal division of the children’s time.
In a draft judgment, describing his decision as finely balanced, the judge made a living with order for equal shared care accompanied by a 12 month supervision order and the specific issue order relating to parental responsibility above.
Following the parties not being able to agree to the terms of the order, further written submissions were provided upon behalf of the parties, the mother’s submissions including arguments regarding the impact upon her parental responsibility. The father was suggesting tightly worded provisions in respect of the specified matters above.
In his final judgment the trial judge reminded himself of the “insidious nature of controlling behaviour” and determined that the parents’ inability to negotiate arrangements meant that specific issue orders were needed to regulate the exercise of parental responsibility in order to avoid future flashpoints.
The judge indicated that he was unable to trust the mother to put the children’s interests first whenever there might be a dispute with the father, but that he trusted the father to do so.
The mother appealed in respect of the 2 limbs above. The appeal was opposed by the father, the LA and the Guardian.
In his judgment Peter Jackson LJ reminded himself of the requirement in S 1 (1) Children Act 1989 that in determining any question with respect to the upbringing of the child, the child’s welfare should be the court’s paramount consideration and of the need to apply the “welfare checklist” set out in S 1 (3) when considering whether to make a S 8 order (Including in this case, a specific issue order).
The judgement in T-D referred to a considerable number of reported cases regarding the exercise of parental responsibility pertinent to the issues in this case.
Those cases included Re P (Parental Dispute: Judicial Determination) [2002] EWCA Civ 1627, in determining an issue about a child’s schooling, the trial judge had ordered that should future issues in respect of schooling arise, the mother would have the final decision following consultation with the father. That decision was overturned on appeal, upon the basis that the parents had a right to judicial determination (para 10) and that “It was not as a matter of principle open to a judge to abdicate that responsibility and simply appoint one of the parents with more or less absolute responsibility” (para 11).
The judgement in T-D referred to a “small number of cases” in which the court has prohibited a parent from taking some or any steps to exercise parental responsibility.
These cases include P v D [2014] EWHC 2355 (Fam) in which the mother and children were living in hiding from the father who was serving a lengthy prison sentence for extreme violence and rape of her. In that case Baker J made a prohibited steps order preventing him from taking any steps in the exercise of parental responsibility, stating that such orders should “only be made in very exceptional circumstances” (para 110).
In H v A (No. 1) [2015] EWFC 58, another case involving a father serving a prison sentence (a life sentence) for very serious offences against the mother and the children, MacDonald J held that the father’s parental responsibility (acquired by having been married to the mother) could not be revoked, but he declared that the mother was under no obligation to inform or consult with him in respect of the exercise of her parental responsibility, and he was prohibited from exercising any parental responsibility throughout the children’s childhoods.
In Re B and C (Children) (Change of Names: Parental Responsibility: Evidence) [2017] EWHC 3250 (Fam), a case in which the children had been retained in Iran by their father before being brought back to the UK by their mother and were living with her at an undisclosed address because of the risk of re-abduction, Cobb J approved changes of names and granted a prohibited steps order preventing the father from taking any steps in the exercise of any aspect of his parental responsibility. The Judge granted a specific issue order permitting the mother to make all decisions and to give parental consent unilaterally and without reference to the father in all matters relating to the children’s upbringing.
In His Highness Sheik Mohammed Bin Rashid Al Maktoum v Her Royal Highness Princess Haya Bint Al Hassein [2021] EWHC 3480, a case concerning maximally oppressive behaviour by one parent towards the other so that the children’s lives were dominated by the consequence of their father’s abusive actions, Sir Andrew McFarlane P granted the mother’s sole responsibility for determining all issues relating to the children’s medical care and schooling. While observing that the order was outside the norm, he was satisfied that the power to make it existed.
He indicated that his decision was justified “by the need to reduce the potential for continuing harm to the children” and referred to the need for the mother “to feel that she now has enhanced autonomy as a parent and that this will be protected by a court order” (para 95).
In T-D in bringing together the relevant principles from the relevant statute and cases, Peter Jackson LJ accepted that the power to use orders to deprive one parent of the right to exercise parental responsibility in one or more broad domains or altogether “undoubtedly exists” (para 46) but that from the cases reviewed, such orders had only been made in extreme cases (para 47).
In T-D and having regard to the principles set out above, Peter Jackson LJ dismissed the appeal on the first ground, concluding that as above, the court had the power to restrict a parent’s parental responsibility.
However, the appeal was allowed on the second ground, namely the making of the order.
Whilst recognising why “the mother’s insidious sabotaging of the normal operation of parental responsibility led (the trial judge) to consider strong measures to rebalance the situation in the father’s favour in order to protect him and the children from her behaviour” (para 51), His Lordship determined that the remedy to control that behavior was not reasonably open to him in the circumstances of the case.
With reference to the school issue above, His Lordship’s view is that it was a matter to be determined by the court reducing the scope for disagreement in respect of that particular issue, and with reference to other matters which the mother had had a history of obstructing, the judge should have made “clear, straightforward orders” (para 52).
His Lordship found the order to be “unnecessary and disproportionate” and made the point that there was no reported precedent for an order depriving a fully engaged carer of significant elements of their parental responsibility.
The case law including Re B and C above was clear that orders limiting or curtailing parental responsibility would be exceptional and rare.
The judge had not provided adequate reasoning “to establish why it was necessary to go down the road of depriving the mother of active parental responsibility in relation to the 3 issues in question, and of doing so indefinitely”.
As above, the trial judge could have dealt with the school issue, and the other matters “could easily be achieved by a combination of ordinary specific issue and prohibited steps orders” which would “give the father and children greater protection than the current order and might therefore enhance the uncertain chances of shared care working”. (para 52).
The matter was remitted to the trial judge for urgent determination of the schools that the children should attend for the next term and for him to make such other orders as he considered appropriate in the light of the judgment of the court.
As above, in my own practice I sometimes encounter situations where parents are not sufficiently consulted when they share parental responsibility for their children. However, what can be established from this article is that in some circumstances the court would have the power to grant overriding parental responsibility to one parent, generally or in respect of specified matters, but that such cases would be extremely rare and would require very compelling reasons consistent with the children’s welfare.
