Re A (Parental Responsibility)

The focus of the present appeal is upon the distinction that is made within the Children Act 1989 [‘CA 1989’] between married and unmarried parents with respect to the court’s power to revoke parental responsibility. In short, where parents are married or are in a civil partnership, there is no power to revoke the parental responsibility of a father or second female parent. That position is in contrast to unmarried fathers, unmarried second female parents or step-parents where, by CA 1989, ss 4(2A), 4ZA(5) or 4A(3) respectively, the court has the power to bring their parental responsibility to an end. The appellant mother asserts that this distinction adversely discriminates against married mothers in breach of their rights, and those of their children, under the European Convention on Human Rights [‘ECHR’]. The judge at first instance, Ms Justice Russell, dismissed the mother’s application for a declaration of incompatibility under Human Rights Act 1998 [‘HRA 1998’], in part because the judge made a prohibited steps order which in practical terms removed from the father the right to exercise his parental responsibility. The mother now appeals to this court against that decision with the permission of the judge.

This judgment has the following structure:

During the hearing it was accepted that this court will need to determine for itself whether to grant a declaration of incompatibility. In those circumstances, and without intending any disrespect to the judge or to counsel’s arguments with respect to the appeal, I will only turn to consider the reasons given for dismissing the claim in the first instance judgment after reaching a conclusion on the substantive application.

One of the central concepts introduced by CA 1989 was that of ‘parental responsibility’. Parental responsibility is an umbrella term meaning ‘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’ [CA 1989, s 3(1)].

Acquisition of parental responsibility is primarily provided for by CA 1989, s 2(1)-(2A):

The effect of CA 1989, s 2 is that, in all cases, whether married or not, a child’s mother will have parental responsibility. Where a child’s father and mother were married to, or civil partners of, each other at the time of the birth, the father will have parental responsibility. Where a woman was married to, or in a civil partnership with, a mother who has given birth in the circumstances stipulated in Human Fertilisation and Embryology Act 2008, s 42 or s 43 together with Family Law Reform Act 1987, s 1(3), that woman will be treated as a parent and will have parental responsibility [CA 1989, s 2(1A)].

Where a child’s father, or second female parent, were neither married nor in a civil partnership with the child’s mother at the relevant time they will only have parental responsibility ‘in accordance with the provisions of’ CA 1989. The further provisions that are there referred to are s 4 (fathers), s 4ZA (second female parents) and s 4A (step-parents):

Whether or not parental responsibility, once it has been acquired by a father or second female parent, can be revoked depends upon the method of acquisition. Where parental responsibility is acquired under CA 1989, s 2, because the father or second female parent was married to, or in a civil partnership with, the mother, no provision is made in s 2, or elsewhere in the Act, for their parental responsibility to be brought to an end. This is in contrast to unmarried fathers, unmarried second female parents or step-parents, where the court is given power to bring parental responsibility to an end under ss 4(2A), 4ZA(5) or 4A(3). The parental responsibility of any person is, however, extinguished by adoption [Adoption and Children Act 2002, s 46(2)].

The appellant mother in the present appeal asserts that the distinction between married or civil partnered parents, and those who are neither married nor in a civil partnership, is in breach of the ECHR rights of married mothers and their children in circumstances where the father has acted in a manner that would justify removal of parental responsibility if they were unmarried.

Irrespective of whether or not there is a statutory power to bring parental responsibility to an end, in every case the court may control and limit a parent’s ability to exercise parental responsibility through the making of prohibited steps orders, and may enhance the ability of the other parent to exercise parental responsibility with respect to specific issues. CA 1989, s 8(1) provides that:

For example, in P v D [2014] EWHC 2355 (Fam) at [109] Baker J, as he then was, noted that, in very exceptional cases, the power to grant a prohibited steps order extends to making an order prohibiting a parent from taking any steps in the exercise of his or her parental responsibility. In H v A (No 1) [2015] EWHC 58 (Fam) MacDonald J granted an order prohibiting a father from taking any steps in the exercise of his parental responsibility with respect to each of his children until they achieved the age of 18 years and a restriction order under CA 1989, s 91(14) was granted for a similar period. In HH Sheikh Mohammed Bin Rashid Al Maktoum v HRH Princess Haya Bin Al Hussein [2021] EWHC 3480 (Fam), I made orders affording the mother in a high-profile case sole responsibility over any aspect of the children’s medical care or schooling.

The factual background to the present case is described in detail in the judgment of Russell J ([2022] EWHC 295 (Fam)). It is only necessary to indicate the principal features here:

Looking at the father’s course of conduct as a whole the judge accepted that [paragraph 34]:

On the basis of the findings that she had made, Russell J was readily persuaded to make extensive orders under CA 1989, s 8 giving to the children’s mother the right to exercise parental responsibility exclusively, and without reference to their father. The substantive order, made on 7 July 2021 [‘the prohibited steps order’], which is a combination of specific issue and prohibited steps orders, states that the mother ‘is expressly permitted to make all decisions and give parental consent unilaterally without reference to, without informing, and without consulting with [the father]’. A non-exhaustive list is then given of decisions which are to be exclusively taken by the children’s mother, including matters concerning the children’s names, travel, which country they are to live in, education and medical treatment. The order goes on to state plainly that the mother is not required to engage with the father ‘in the exercise of any aspect of parental responsibility’.

The July 2021 order prohibits the father from removing the children from the care of their mother, or from any educational, medical or other institution to which she has entrusted their care. He is prohibited from requesting (or getting others to do so on his behalf) any information about the children’s schooling or health. The order directs that he is to have no contact by any means with the children. In addition, the order imposes a prohibition upon the father making any application to the court under CA 1989 without the prior leave of the court, pursuant to CA 1989, s 91(14).

The mother argued that the statutory scheme was incompatible with her right to a private and family life under Art 8 ECHR, and taken together with Art 14, discriminates against married mothers and children of married parents.

Human Rights Act 1998, s 4 gives the court the power to declare that primary legislation is incompatible with a Convention right. Pursuant to s 4(2), if the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of incompatibility. A declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision and is not binding on the parties to the proceedings in which it is made (HRA 1998, s 4(6)).

At the centre of the Appellant’s case, which was presented with clarity by Ms Caoilfhionn Gallagher KC and Mr Chris Barnes, is the assertion that some vulnerable children and their mothers are barred from obtaining recognition from the State that their father has acted in a way that justifies the removal of his parental responsibility. It is argued that no amount of prohibited steps or other orders reducing the exercise of parental responsibility can equate with an order for the removal of parental responsibility. The removal of parental responsibility is to be seen as ‘the gold standard’, yet it is not available to a particular class of children and mothers.

Where courts are given the power to remove parental responsibility in other circumstances, the absence of such a power for mothers who are married or in a civil partnership is, Ms Gallagher submits, incompatible with the ECHR and cannot be justified as a distinction simply based on birth status.

Within the ECHR, Ms Gallagher targeted the main focus of her submissions on Art 14 taken with Art 8.

By ECHR Art 8:

The Art 14 discrimination relied upon by the Appellant is the inability for married mothers and their children to apply for removal of parental responsibility, irrespective of whether the remedy would be granted in any particular case. It is discrimination based solely upon marital/birth status. It is not gender specific discrimination, as the legislation applies to fathers and to second female parents, but it is specific as to parental status.

Reference was made to the relevant Scottish law which, in contrast to CA 1989, by virtue of the Children (Scotland) Act 1995, s 11(2)(a), enables the court to make an order depriving any person of some of all or his parental responsibilities or parental rights in relation to a child.

In describing the holding of parental responsibility as affording a ‘status’ to a parent, Ms Gallagher relies upon a reference to that effect that I made in Re W (Direct Contact) [2012] EWCA Civ 999 at paragraph 80:

“Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents….”

The appellant’s case is, therefore, that parental responsibility is a matter of status and that it cannot be reduced to being a mere label. Ms Gallagher accepted the court’s observation that, irrespective of parental responsibility, the separate status of being a child’s ‘father’ cannot be removed and that position is the same whether or not the parents were ever married or in a civil partnership. She nevertheless pointed to the continued possession of parental responsibility as being a distinct and different status to that of being a ‘father’.

In a statement in support of her application, the Appellant states that she finds it incredibly hard to understand how it is fair for the father to retain parental responsibility simply because they were married. She says ‘I feel forced to have an ongoing [parental] relationship with him and this presence feels both intimidating and intrusive to our lives’.

The primary remedial measure available to a court under HRA 1998 to meet a possible conflict between domestic legislation and ECHR Convention rights is for the court to read the domestic provision down in a compatible manner. By HRA 1998, s 3(1), a court is required, so far as it is possible to do so, to give effect to primary and secondary legislation in a way that is compatible with Convention rights. The Appellant’s case is that reading down is not possible in the present case having regard to the provisions of CA 1989, s 2 when read in the light of s 4, which applies to unmarried parents. The Lord Chancellor agrees that it is not possible to read in, or to infer that there is, a power of revocation of parental responsibility for married parents. That concession is not, however, a concession that the provisions of the CA 1989 on this issue are incompatible with the ECHR.

Turning to focus her submissions on Art 14 taken with Art 8, Ms Gallagher first noted that it was conceded at first instance that the issues engaged in this case are within the ambit of Art 8 rights to family life. No point is taken within the appeal and this court is invited to accept that that is so.

Secondly, in order to establish that there has been discrimination, Ms Gallagher points to the reference in Art 14 to ‘or birth status’. It is agreed that marriage is a status for these purposes and the appellant’s primary case is that the rule that married fathers cannot be deprived of parental responsibility is prima facie discrimination based upon the status of marriage or civil partnership or birth status in the case of the child/children concerned. Again, no issue is taken on these points by other parties.

Once a prima facie case of discrimination is established, Ms Gallagher correctly submitted that the burden shifts to the State to justify the difference in treatment. Ms Gallagher based her submissions on justification on the leading Supreme Court authority of R (Tigere) v Secretary of State for Business, Innovation and Skills (Just for Kids Law intervening) [2015] UKSC 57 where, at paragraph 33, Baroness Hale DPSC described the fourfold test that is to be applied:

Ms Gallagher referred to European Court of Human Rights [‘ECtHR’] authority establishing that ‘very weighty reasons’ must be advanced to justify a distinction based upon a person’s birth status [Fabris v France [GC] (2013) 57 EHRR 19; Wolter and Sarfert v Germany (2018) 66 EHRR 13] or marital status [Sahin v Germany [GC] [2003] 2 FLR 671; Sommerfield v Germany [GC] (2004) 38 EHRR 35]. Ms Gallagher submitted that the court was, therefore, required to identify very weighty reasons in the present case where the discrimination was based upon marital and/or birth status.

Ms Gallagher referred to three ECtHR cases which, in different ways, focussed upon a distinction drawn between married and unmarried parents.

In PM v UK (App 6638/03) the court found a breach of Art 14 with regard to a difference in treatment for tax purposes relating to child support between fathers who had been married parents and those that had not been married. It was held that where an unmarried father had acted to support his child as a married father would do, there was no reason for treating him differently to a father who was now divorced and separated.

In McMichael v UK (1995) 20 EHRR 205, the case, in so far as it is relevant, related to the acquisition of parental responsibility where different regimes as between married and unmarried fathers were justified. Ms Gallagher submitted that such justification is not proportionate where a distinction which promotes traditional family values through marriage is to be maintained in the face of conduct which would otherwise justify the recission of the parent’s status.

The third case, Smallwood v UK (1998) 27 EHRR CD155 concerned an unmarried father who complained of discrimination following an order under CA 1989, s 4 rescinding his parental responsibility, which could not have been made had he been married to his child’s mother. In the context of the issue raised in Smallwood, the ECHR Commission considered that the distinction between married and unmarried parents fell within the UK’s margin of appreciation so that no appearance of violation of Art 8 in conjunction with Art 14 was disclosed. Ms Gallagher submits that the issue before the Commission in Smallwood did not apply to the present case.

More generally, Ms Gallagher submitted that the fact that there may be a rationale for a distinction between married and unmarried parents in other contexts, does not mean that such a distinction in the present circumstances is justified.

Ms Gallagher submitted that it was a flawed approach for the court to rely upon the fact that the Law Commission and subsequently Parliament had established and maintained the current distinction between married and unmarried fathers with respect to the discharge of parental responsibility. The court was taken to the first Law Commission Report on ‘Illegitimacy’ (1982: Law Comm 118) [‘the first LC Report’]. The primary focus of this first report, which looked at proposals for removing some or all distinctions between children born in or out of wedlock, was upon the acquisition of parental rights rather than their removal, but consideration was given to removal in paragraphs 4.41 and 4.42. Paragraph 4.41 considered a proposal for the law to allow for the restriction of the rights of all parents (married or unmarried) when they are shown to be ‘obviously unsuitable parents’. That proposal was roundly rejected by the Commission at paragraph 4.42:

The Law Commission’s 2^nd Report on ‘Illegitimacy’ (1986: Law Comm 157) [‘the second LC Report’] contained more settled proposals for reform and, at paragraph 3.3, drew the distinction between married and unmarried fathers with respect to the removal of parental rights:

By the Law Commission’s 3^rd and final report on this area, their proposals had been broadened into the wider scheme that was then taken up by Parliament and enacted in the CA 1989 (‘Family Law: Review of Child Law Guardianship and Custody’ 1988 Law Comm 172) [‘the third LC Report’]. It was in this 3^rd Report that the Commission set out and developed the concept of ‘parental responsibility’ and, at paragraph 2.11, recommended, as a matter of principle, that parental responsibility should only be lost through adoption:

Ms Gallagher considered that reliance upon the analysis and justification of the Law Commission, which was subsequently adopted by Parliament, for the distinction between married and unmarried fathers was flawed because the focus of the justification was upon encouraging the acquisition of parental responsibility by unmarried fathers. If, as was held in McMichael and Smallwood, there is justification for a distinction between married and unmarried fathers at the time of acquisition, that does not, in the Appellant’s submission, justify there being a distinction in the approach to recission of parental responsibility on the basis of marital status. It is the Appellant’s case that no valid justification for this distinction can be put forward.

Drawing her submissions together, Ms Gallagher referred to the four stages of the test set out by Baroness Hale in Tigere. She accepted that (i) was established and that recognising the importance of parental responsibility being held by both parents in a stable family unit was a legitimate aim.

In relation to (ii), however, she questioned how there could be any rational connection between that aim and the protection of a uniquely harmful group of abusive fathers. Indeed, she submitted, that there was a total disconnection between protecting such a group and the maintenance of a stable family unit.

In any event, a less intrusive measure, namely permitting a mother or children to apply to revoke the parental responsibility of a married father, would be entirely proportionate. In those circumstances, Ms Gallagher submits that it is not possible to hold that a fair balance has been struck, as required by stage (iv) of the Tigere test.

Ms Gallagher cautioned against reliance upon the analysis of the Law Commission more than 30 years ago. It was an analysis made before any of these provisions had come into force and on the basis of the limited proposals that were made for an unmarried father to gain parental responsibility either by agreement or court order. Following the change in the law providing for parental responsibility to follow the naming of a father on the child’s birth certificate, the number of unmarried fathers who have parental responsibility has greatly increased. That has been a very significant change and it was not one within the contemplation of the Law Commission back in the 1980’s.

At the core of Ms Gallagher’s submission is the assertion that the justification that exists for a distinction between married and unmarried fathers with respect to the acquisition of parental responsibility does not carry through to justifying a distinction between those two groups with respect to revocation. Her case is that there is no necessary connection between acquisition and revocation. In any event, Ms Gallagher questioned whether the justification that existed when the CA 1989 was enacted of encouraging mothers to make parental responsibility agreements, or for courts to make a parental responsibility order, is valid where the acquisition is by the father being named on the birth certificate. There was, Ms Gallagher pointed out, no evidence that the distinction has any impact or relevance upon a mother deciding to agree to a father being named in their child’s birth certificate. A blanket bar against revocation of a married father’s parental responsibility goes further than the policy or objective of encouraging the acquisition of parental responsibility by unmarried fathers so that it protected married fathers from an application for removal even where they have committed marital rape or murder.

Ms Gallagher challenged Mr Jaffey’s contention, based upon R (SC and others) v Secretary of State for Works and Pensions [2021] UKSC 26, that neither a strict review, nor a high standard, should be applied where the context was one of social policy being developed over time. Ms Gallagher relied on the summary given by Lord Reed at paragraph 142 which demonstrated that the broad or narrow nature of the margin to be afforded to Parliament may vary depending upon a range of factors, but, where the basis of a difference in treatment depends upon one of the ‘suspect’ grounds, such as birth status, there is a general need for strict scrutiny. Ms Gallagher also relied on Lord Reed’s later description of the approach at paragraph 158:

The appeal is supported by Mr Mark Jarman KC and Ms Maria Stanley on behalf of the children’s guardian.

Mr Jarman was clear that, whilst the ruling was not accepted as correct by the children’s guardian, no challenge was made to the judge’s finding that if she had had the power to do so, she might not have made an order revoking the father’s parental responsibility in this case. At paragraph 131 of her judgment, Russell J said:

“The rights of these children were given primary consideration by this Court in making the orders that it did; I have already alluded to the fact that had the court had the power to revoke parental responsibility, the considerations and conclusions in respect of best interests of the children would not necessarily coincide with the case put on behalf of [the mother]”.

Mr Jarman took the court to the helpful distillation of the four key steps when considering whether or not there has been a breach of ECHR, Art 14 read with Art 8 as set out by Baroness Hale PSC in Re McLaughlin [2018] UKSC 48 at paragraph 15:

Mr Jarman submitted that there was no justification for affording a privileged position to married parents in this context and he pointed to the position under Scottish law where no such distinction is drawn. In short, the difference in treatment as between those parents who are married, and those who are not, is a clear case of discrimination in breach of Art 14 read with Art 8.

Whilst Mr Jarman accepted that there would be no practical impact upon the mother or children if parental responsibility is removed from the father in the present case, given the comprehensive orders that have been made to limit his ability to exercise it, there was nevertheless a psychological impact that arose from knowing that he still held parental responsibility for the children.

Mr Ben Jaffey KC, leading Ms Carine Patry KC and Mr Alex Laing on behalf of the Lord Chancellor and Secretary of State for Justice, invited this court to uphold the decision to refuse a declaration of incompatibility and to dismiss the appeal.

Mr Jaffey commenced his submissions by drawing attention to the underlying policy of the CA 1989 which provides that parental responsibility granted to every mother is permanent and can only be revoked in the event that her child is subsequently adopted. The cohort of uniquely unmeritorious parents whose parental responsibility cannot be removed must, therefore, include some mothers who have acted in a wholly negative manner towards their children.

The policy of the CA 1989 is to afford priority to marriage or civil partnership, and, despite the relevant provisions having been amended on a number of occasions since 1989, that priority has been maintained by Parliament. Rather than the difference in treatment being ‘simply’ because of marriage, as characterised by Ms Gallagher, Mr Jaffey submitted that the status of being married or in a civil partnership established a fundamental difference that was maintained throughout the legislative scheme. When a child is born, there is a need for at least one person to have parental responsibility, namely the child’s mother. Parliament has established that, where a couple are married or in a civil partnership, then parental responsibility, on the same irrevocable terms, should be extended to the other parent.

In terms of the acquisition of parental responsibility, the choice made by Parliament not to give automatic parental responsibility to all unmarried parents is justified on account of the wide range of personal relationships that may exist, in distinction to those who have positively committed to the establishment of a family unit through marriage or civil partnership. A further aspect of the policy was for everything to be done to encourage unmarried fathers to gain and hold parental responsibility. Part of that latter aspect was to allow for revocation in order to encourage mothers and/or the courts to agree to the grant of parental responsibility to unmarried fathers.

Mr Jaffey further submitted that it was artificial to divide consideration of acquisition from revocation; the two are inextricably linked. There is a different scheme for acquisition and a different scheme for revocation, depending on marital status. This is a distinction which has been firmly maintained by Parliament.

In those cases where the parental relationship has broken down and a parent has behaved in a manner that justifies doing so, Parliament has given the courts power to neutralise and prevent the exercise of parental responsibility by that parent, whether they be mothers or fathers, married or unmarried. Parliament has not, therefore, left a mother without an effective remedy. In this manner, Mr Jaffey submitted that the scheme as a whole was justified.

Turning to the detailed provisions in CA 1989, Mr Jaffey drew attention to

Secondly, Mr Jaffey pointed to the fact that Parliament had, through the Domestic Abuse Act 2021, expanded the court’s powers to prohibit further CA 1989 applications by inserting a new section, s 91A, into the Act, with the result that these prohibitive powers were now even more readily available. These expanded powers have been described by Hayden J in F v M [2023] EWFC 5 in clear terms:

In support of his general submission that the distinction between married and unmarried parents in this context is justified, Mr Jaffey placed particular emphasis upon paragraph 4.42 in the first LC report [see paragraph 37 above] where it is said that ‘our law … is firmly based on the principle that the family is a unit in which there exists a broad parental authority’. The position endorsed by the Commission in that paragraph is that, whilst some parents may abuse their status, such circumstances can be met by bespoke orders rather than the alteration of the underlying structure as to the holding of parental authority.

The principled approach of the Law Commission in the first report was maintained through to the third and final report so that, at paragraph 2.11 [see paragraph 39 above] the recommendation was that parents would retain the status of being a parent, and retain parental responsibility, save upon the making of an adoption order.

Mr Jaffey commended the regime in CA 1989, Part 1 as a very well thought through scheme which deliberately sought for parents to retain parental responsibility, save for the exception established, in order to encourage the grant of parental responsibility to unmarried parents.

Mr Jaffey relied upon the ECtHR decision in McMichael to the extent that a distinction in Scottish law, which did not afford automatic parental rights to an unmarried father in contrast to the position for married fathers, was both legitimate and proportionate in that it provided a mechanism for identifying ‘meritorious’ fathers to whom rights could be granted. Consequently, no breach of Art 14 read with Art 8 was established [McMichael paragraphs 96 to 99].

Mr Jaffey submitted that the Smallwood decision was directly on point with the present case. In particular, the Commission held, in line with the ECtHR decision in McMichael, that there was an objective and reasonable justification for the difference in treatment between married and unmarried fathers:

Mr Jaffey pointed out that the decision in Smallwood had been applied in this court in Re D (Withdrawal of Parental Responsibility) [2014] EWCA Civ 315 where permission to appeal on the grounds of discrimination had been refused. Ryder LJ described the court’s approach:

By way of further illustration, Mr Jaffey referred to H v A (No 1) [2015] EWHC 58 (Fam) in which MacDonald J had encouraged counsel to abandon a ‘bold’ submission that the court should read into CA 1989 a power to revoke the parental responsibility of a married father on the basis that it had been Parliament’s intention to draw the distinction between married and unmarried fathers and that the ECtHR had held that the distinction did not establish a breach of Art 14 with Art 8.

On the question of what test the court should apply with respect to evaluating the policy decision underlying the distinction between married and unmarried fathers in this context, Mr Jaffey referred to the decision of the Supreme Court in the Scottish case of R (SC) v Works and Pensions Secretary [2021] UKSC 26. In the course of an extended passage in his judgment, commencing at paragraph 97, Lord Reed PSC conducted a comprehensive review of the case law relating to the applicable test for justification, with particular focus upon ‘suspect’ grounds such as gender, marital status or birth status. At paragraph 115 the approach is summarised:

Mr Jaffey submitted that, as Lord Reed made clear, an issue such as that in the present case, where social policy is developing over time, is not one to which a strict approach or a high standard should be applied. The court should respect the choices that have been made by the legislature.

Having described the manner in which the margin of appreciation is applied by the Strasbourg court, Lord Reed considered how such considerations were to be reflected in decisions of a domestic court at paragraph 143 onwards:

Mr Jaffey submitted that on the issue of revocability of parental responsibility Parliament had to provide a coherent scheme, which, whilst it may not please everyone, does contain sufficient powers of mitigation to meet different situations.

Moving on, Mr Jaffey stressed that, in determining the issue of incompatibility, the court should not focus upon the individual circumstances of the mother and children in the present case; an approach which had been made clear in the judgment of the court in R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559 at paragraph 58:

Mr Jaffey also relied upon the judgment in McConnell [at paragraph 59] as a recent re-statement of the established approach to be taken to determining proportionality:

Mr Jaffey drew the court’s attention to paragraphs 80 to 82 in the judgment in McConnell in which Lord Burnett of Maldon LCJ focussed on engagement in the domestic context with the international law concept of ‘margin of appreciation’, which he described as the ‘margin of judgment’, which is to be afforded by a domestic court to Parliament. The Lord Chief Justice identified two foundations of the margin of judgment relevant in that case. Firstly, the institutional competence of the courts as compared to Parliament. In doing so he described the limited perspective that a court must necessarily have to engage with issues of social policy, when compared to the broad field of vision and resources available to Parliament. The second foundation is the democratic legitimacy of Parliament:

Mr Jaffey’s overall submission on this point is that because the question in the present case involves an issue of social policy the margin to be afforded to the decision of Parliament is a wide one.

In determining whether or not incompatibility with the ECHR is established, there is a need to consider the question of degree; is breach of just one individual’s ECHR rights in consequence of a legislative provision sufficient to establish incompatibility? Mr Jaffey pointed to the decision of the UKSC in Re Abortion Services (Safe Access Zones) NI Bill [2022] UKSC 32 as establishing [at paragraph 19] the test as being that described by the UKSC in Christian Institute v Lord Advocate [2017] UKSC 29 at paragraph 88:

Mr Jaffey concluded by submitting that a deliberate policy choice had been made by Parliament in distinguishing between married and unmarried fathers in this context. That choice was justified and, despite the distinction that was thereby drawn, it was not incompatible with the Convention. In any event, where no withdrawal of parental responsibility could take away the hurt and harm done to the mother and children by the father’s abusive behaviour, where he would, in any event, retain the status of ‘father’, and where his ability to exercise parental responsibility has been totally removed, the impact on the mother and children of the difference in treatment was, as Russell J had found, minor.

Mr Jaffey accepted that the point of focus in the current challenge is upon the mother and children not being able to apply for revocation, but, he submitted that it is the scheme as a whole which is being challenged and incompatibility should be determined on that basis.

It is important to commence consideration of the status of parenthood under the law of England and Wales by looking at the recommendations of the Law Commission in the 1980’s. It is important to have some understanding of what had gone before and the basis upon which parental rights and the status of parenthood had been afforded to mothers and fathers, whether married or unmarried, in the lead up to that period and prior to the CA 1989.

The common law in England and Wales at the beginning of the 20^th century as to who held parental authority over a child born during a marriage was clear and simple:

Reform was achieved by s 1 of the Guardianship Act 1973, which equalised the rights of a married father and mother with respect to their child. Separately, the Children Act 1975, s 85 established the twin concepts of parental rights and duties yet maintained that the mother of an illegitimate child had those rights and duties ‘exclusively’ [s 85(7)]. The only route by which the father of an illegitimate child could obtain parental authority was to be appointed as guardian following the death of the child’s mother, or by obtaining a custody order from the court under the Guardianship of Minors Act 1971.

These core provisions provided the landscape within which the Law Commission then undertook its work during the 1980’s culminating in the CA 1989.

Against the background of a very long-established legal structure within which, for much of the time, it was only the child’s father who held parental authority for a legitimate child, and where only a decade or so earlier the child’s mother had come to share such rights in equal measure, it is not correct to characterise the clear distinction drawn in the CA 1989 between married and unmarried fathers as being ‘simply’ or ‘merely’ because of marital status. On the contrary, in terms of who did or did not hold parental authority for a child, the distinction between being married or unmarried was legally the determinative factor.

Regarding the direction of travel under these reforms, the historical perspective demonstrates that the positions of the married and the unmarried father were moving from diametrically opposite starting points. The one, automatically having full, irrevocable, and until recently sole, parental authority for his child, and the other having no rights during the life of the child’s mother save for those that might be afforded by a revocable court order. In terms of the CA 1989 reforms, it had always been a given under the law that the father of a married child would have full, irrevocable parental authority (save for adoption). The changes to be made related to the need to expand the avenues by which an unmarried father might obtain parental responsibility, and, as the relevant passages in its reports demonstrate, it was to that issue that the Law Commission gave its attention, and it was into that context that the question of revocation of parental responsibility was introduced.

There is essentially no dispute, and this court has readily accepted, that the issue raised in this appeal engages with family life rights within Art 8 and that a distinction is drawn between a married father and an unmarried father arising from the inability to apply to revoke the parental responsibility of the former. There is, therefore, prima facie discrimination based upon marital (or civil partnership) status.

Whether or not a parent has parental responsibility gives them a status in their child’s life which differs from that or a parent who does not have parental responsibility. It is, however, necessary to understand any such status as being of flexible weight or standing. Much, for example, will depend upon the degree to which a parent is able or permitted to exercise parental responsibility when determining the importance of that status for others in the family, be they the children or the other parent.

When evaluating the importance of the status that is afforded by having, or not having, parental responsibility, it is also necessary to understand that there will be a separate status, namely that of ‘father’ or ‘parent’. In the present case, even if it were possible to revoke the father’s parental responsibility, he would still remain the children’s biological father. Insofar as it is said that there is an adverse psychological and emotional impact on the children and their mother from knowing that the father retains parental responsibility, it must be the case that a similar negative consequence will flow from knowing that he remains their father and that that status cannot be removed. These factors are of some importance when it comes to assessing the degree of significance of any discrimination resulting from the different treatment of married and unmarried fathers.

A prima facie case of discrimination with respect to a relevant status having been established, focus shifts to the question of justification and the four-fold test set out in similar terms in Bank Mellat, Tigere and McLaughlin, firstly, whether the distinction has a legitimate aim sufficient to justify limiting the rights of a mother and/or children of a married father.

The long-standing position under the law of England and Wales, as previously described, has been that a married father has always been afforded parental authority for his child and that this could not be revoked, save by adoption. The legitimate aim of prioritising the state of marriage, and ensuring clarity over legal authority and responsibility for a child within the marital family is plain to discern. Prioritising the state of matrimony, and more recently civil partnership, over other less formalised relationships has been maintained by Parliament as a central tenet of Family law, both with respect to children and in relation to the division of property in the event of separation.

The Law Commission emphasised the fundamental nature of the priority to be afforded to parental responsibility within a marriage at paragraph 4.42 of its 1^st Report:

Until the 1989 Act an unmarried father could not be afforded any parental rights or authority, save by a revocable custody order. The CA 1989, both initially and by later amendment, has altered that position by bringing some unmarried father’s into a position closer to that of their married counterparts by allowing them to acquire parental responsibility by agreement, court order or by being named on the birth certificate. But elements of the long-standing distinction with married fathers have remained in that some unmarried fathers will not have parental responsibility and those that do acquire it may have it removed by subsequent court order. This distinction, from the perspective of the Art 14 rights of an unmarried father, has been held not to establish a breach of the ECHR [see paragraphs 33 to 35 above].

The legitimate aim of maintaining the status of married fathers and supporting the priority that has consistently been afforded by Parliament to the state of matrimony is plainly capable of justifying the limitation of a fundamental right.

The second Bank Mellat consideration is whether the measure is rationally connected to that aim. The answer on this point must be in the affirmative. The legitimate aim is to maintain the priority afforded to the married state and to retain the irrevocable parental authority/responsibility of a married father that has existed for more than a century. The newly created ability to grant, but also to revoke, parental responsibility for unmarried fathers is not connected with the legitimate aim of prioritising the creation of, what are hoped to be, stable and enduring family relationships within marriage or civil partnership. The spectrum of relationships which may lead to a child being born to parents who are not married is broad and may run from a transient encounter to one which endures for as long as many marriages. The separate aim underpinning the law relating to unmarried fathers is, firstly, to allow parental responsibility to be afforded to some such fathers, and, secondly, to encourage 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 is justified.

On that basis, the existence of a different scheme for unmarried fathers does not provide the support that the Appellant seeks to place upon it. That scheme can be separately objectively justified, and the reasons underpinning that scheme cannot be applied to married parents. The justification for there being a difference in treatment for married parents is, thus, 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 may occur.

The third consideration requires consideration of whether a less intrusive measure could have been used to achieve the policy and can be taken shortly. Where the policy aim is to afford priority to the status of marriage or civil partnership by ensuring that the parental responsibility of both parents is retained, save for adoption or parental order, it must follow that any measure which allows for that status to be reduced would defeat the object of the policy. Here the element of discrimination arises solely from the ability of a mother or child to apply to revoke parental responsibility of an unmarried father. It is binary; either the same facility is introduced for married fathers, or it is not; there is no ‘less intrusive’ measure to be contemplated.

Finally, there is the question of whether, bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, a fair balance has been struck between the rights of the individual and the interests of the community.

In assessing the issue of balance, it is important to address a submission at the core of the Appellant’s case which is that, although a father’s ability to exercise parental responsibility may be reduced by prohibited steps and other orders, and/or by a prohibition on further court applications under CA 1989, s 91(14), this is not an adequate remedy. For reasons that have already been given, it is accepted that simply holding parental responsibility, irrespective of any ability actually to use it, is a relevant status in this context, and it is right that emptying a person’s status of any power to deploy it, does not remove the status itself. But the fact that the status remains does not mean that the ability of a court to make orders removing that status of all value is not an adequate remedy. In terms of protecting the mother and children from any future involvement of the father in their lives, the orders made in this case and similar cases is, indeed, an adequate remedy. The remaining status of being a holder of parental responsibility is but an empty vessel and, when determining what weight is to be attached to its continuing impact on the mother and children, it is likely to attract only minimal weight at most.

A further feature that is relevant to the assessment of a fair balance, is the point made earlier that, irrespective of parental responsibility, the status of being the children’s father will remain and cannot be revoked, save by adoption or parental order.

Taking those two factors together, the consequences of maintaining a distinction between married and unmarried fathers, and not permitting an application for revocation of a married father’s parental responsibility, are either of minimal severity or of little weight. Other than the maintenance of the status of holding parental responsibility, revocation would not cause any material change in the lives of the mother and children in the present case. The children’s father in the present case is wholly unable to exercise any aspect of his parental responsibility. He does not know where his children live and he does not even know their names.

On the other side of the balance, it must be the case that, for families where a father has behaved so badly that removal of his parental responsibility may be justified, no weight will attach to the maintenance of stable family life within the context of a marriage. That aspect of an individual case does not, however, detract from the importance of the overall social policy aim of affording priority to marriage and civil partnership in the community as a whole, particularly where the court can provide practical protection by making a prohibited steps order.

In granting permanent parental responsibility to all married fathers, Parliament was continuing to uphold a long-established principle of Family law in England and Wales. In the CA 1989 a new, and different, scheme was created for the attribution of parental responsibility to unmarried fathers. For reasons that have been upheld in the Strasbourg cases, the new scheme provided for parental responsibility to be revoked in order to encourage mothers (or courts) to consider agreeing to grant it. The two schemes for acquisition and revocation of parental responsibility by married, on the one hand, and unmarried fathers, on the other, are distinct from each other. Each of the schemes is justified on its own terms, the former being based on long-standing legal principle, and the latter on the need to provide for parental responsibility for some unmarried fathers where previously there had, effectively, been none. The distinction between the two schemes exists because they have different aims and they are designed to meet different circumstances.

Drawing matters together, it is clear that the difference in the treatment of unmarried and married fathers is justified by the long-standing principle that married fathers (and mothers) should have irrevocable parental authority/responsibility for their children. Ms Gallagher’s repeated characterisation of the difference in treatment as being ‘simply’ because the father was married misses the point. Affording priority to the establishment, and maintenance, of stable family life by commitment through marriage or civil partnership is what it is all about. Whilst there is, therefore, a difference in treatment, and thus prima facie discrimination, as between married and unmarried fathers, the impact of that difference upon their children and the children’s mothers is, in reality, minimal. Parliament has given the court power to empty a father’s parental responsibility of all content and to prevent him making future applications to the court. A revocation order in the present case would make no material difference to the lives of the mother or children. Whilst the father retains the status of having parental responsibility, he also retains the status of being the children’s ‘father’; if the former could be removed, the latter would remain, with the consequence that the psychological or emotional benefit of revocation could only be minimal. The negative impact on a family that arises from an inability to apply to revoke parental responsibility, is, therefore, comprehensively outweighed by the overall benefit to the community of maintaining the priority that is attributed to marriage and civil partnership.

Although the point does not arise here, given the clear justification for the two different schemes relating to parental responsibility, if matters were more finely balanced, this court would need convincing evidence of a significant adverse impact of the policy on the wives and children of married fathers before holding that Parliament had acted incompatibly with the HRA and ECHR in this area of social policy in casting the law as it has done. For the reasons that I have given, the evidence of adverse impact fails to come close to achieving that quality.

In all the circumstances, the Appellant has failed to establish that the scheme within CA 1989, Part 1, and in particular the absence of a power for the court to revoke the parental responsibility of a married father, is in breach of ECHR Art 14 taken with Art 8, and the application for a declaration of incompatibility must, therefore, also fail.

In a Northern Ireland High Court case of SV, FV and GV [2022] NIFam 11, Humphreys J considered the same issue, albeit in the slightly different legislative context of the Children (Northern Ireland) Order 1995. Humphreys J concluded that the distinction between married and unmarried fathers with respect to revocation of parental responsibility was justified and did not establish a breach of the ECHR rights of married mothers and their children. Humphreys J’s analysis is essentially on all fours with the approach of this court. This court was told that the applicants in SV, FV and GV had appealed to the Court of Appeal in Northern Ireland and that the appeal had been heard with judgment reserved.

In the light of the conclusion reached on the substantive application, it is not necessary to consider the first instance judgment of Russell J in detail. The judge’s analysis included the following steps and conclusions:

Although this court has reached the same conclusion by a process of analysis which, to a degree, differs from that of the judge, that is no basis for allowing the appeal which, it follows, must be dismissed.

For the reasons that I have given, the application for a declaration of incompatibility is refused and the appeal dismissed.

I agree.

I also agree.