October 2020 – Divorcing A Parent

October 19, 2020

Divorcing A Parent

A spoilt teenager may selfishly cry “I wish you weren’t my mum / dad anymore!” for dramatic effect, but in other families this can be the genuine plea of an abused child. Their desire to cut ties and to restrict the abusive parent’s involvement in their lives is usually understandable but is not always easy to do.

There have been many high profile cases in the US of children ‘divorcing’ their parents; here in the UK  either the child, a parent or a Local Authority with parental responsibility, may seek to decrease the abusive parent’s ability to exercise control or influence over the child’s life. This parental responsibility is defined in section 3(1) of The Children Act 1989 (CA) 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’.

The issue of restricting this parental responsibility was raised very recently in the case of F v G [2020] EWHC 2396 (Fam). An appeal was allowed against an order which had restricted the father’s contact to only 10 minutes on Skype twice per week and very significantly restricted his parental responsibility following findings of significant domestic abuse. The appeal was allowed because the Judge had failed “to weigh in the balance the harm that could be caused to the children by the immediate loss of their relationship with the father, which had to be set against the risks to the children and the mother of contact continuing.”

In every case of restricting parental responsibility, these are the factors which must be weighed in the balance. The court must also consider the parent’s right to respect for family life under Article 8 ECHR and the court’s ability to proportionately restrict this right to protect the child.

How does it work?

When an adoption takes place, parental responsibility is removed completely from the birth parents and is given to the adoptive parent(s) by way of an Adoption Order. This change is clear cut. When an application is made to limit or restrict a parent’s parental responsibility, things are more complicated.

Parental responsibility in these cases can be restricted by way of a Prohibited Steps Order (PSO). A PSO is an order that a specific step cannot be taken by the parents which they would ordinarily be able to take in relation to their child. This order can be for common things such as changing the child’s school or doctor. However, when there have been serious incidents of abuse, the parent/guardian/child/local authority may want to restrict it further or remove it entirely, effectively to prevent the parent from obtaining any information about the child or being involved in their life.

In the case of H v A (No 1) [2015] EWFC 58, the father was in prison for abuse of the mother and children. He even made attempts to abuse them while in prison, including an attempted murder by trying to have her house burnt down. The mother sought three orders in respect of her three children; (i) to revoke an order allowing the father indirect contact; (ii) to revoke the father’s parental responsibility and (iii) an application pursuant to s 91(14) CA 1989. Since the father and mother were married at the time of the children’s births, his responsibility could not be removed but could be entirely restricted. Mr Justice MacDonald said:

Within this context all three children have, in my judgment, a continuing and acute physical and emotional need for a family and home life that is stable, secure, and safe from further trauma instigated by the father.  In particular, all three children need to be brought up in an environment that is not only free from any risk that their father will locate them and again attempt physically to harm them but also as free as reasonably possible from the anxiety that their location might be disclosed. 

The order given by the judge included a restriction on the father’s ability to access the children’s school records. This may seem like a harmless connection to the children, but it was deemed to be both a risk and a worry for the children, who had suffered such serious abuse in his care. Whilst he wanted to see the records and felt it was his right to do so as a parent, the judge noted what Lord Justice Ryder had reiterated in Re D (A Child) [2014] EWCA Civ 315, that “the concept of parental responsibility describes an adult’s responsibility to secure the welfare of their child, which is to be exercised for the benefit of the child not the adult”. The trauma suffered by the children included an ongoing worry that the father would locate them via school records, and this concern was given sufficient consideration.

The judge in this case went on to say that the court has a high responsibility not to impose such a significant restriction without good cause and that reasons for imposing a restriction must be given. The restriction must specifically address the mischief it is designed to address, must be based on evidence, and must give sufficient weight to any benefit to the child of having that parent in their life.

Once it has been determined that it is necessary to restrict a parents Parental Responsibility a PSO can be made and the range of restrictions available is at the court’s discretion. In the case of P v D & Ors [2014] EWHC 2355 unprecedented orders were granted which brought PSOs into the digital age. The father was in prison for multiple counts of rape and extreme violence against the mother and three daughters. The mother sought to limit the father’s parental responsibility so he could not have any involvement in the lives of their children. The father was prohibited from –

– making contact by letter, telephone, Skype, text message, email, any means of electronic communication, or through any social networking sites, including Facebook;

– accessing or attempting to access any email, Facebook or other electronic account operated by any of them, whether under his own name or otherwise;

– holding himself out as being any of them in any electronic mail, social networking or other communications.

As well as these modern restrictions there were orders prohibiting any direct or indirect contact and prohibiting communication of any kind with relevant health or educational establishments, thus restricting all parental responsibility. Baker J’s explanation for doing so was:

In some cases, it is necessary for the court to make a prohibited steps order restricting a parent from taking steps that he or she would normally be entitled to take in the exercise of parental responsibility. That power extends, in very exceptional cases, to making an order prohibiting a parent from taking any steps in the exercise of parental responsibility.

In making such an order the court gave sufficient weight to the criminal findings of physical and sexual abuse, and of the father’s harassment of the mother and three children. It was satisfied that Z’s need for emotional stability and welfare outweighed the father’s Article 8 convention rights. It was satisfied that while the normal position of the court is that the father’s heritage and influence is a positive and important factor in a child’s life, the safety of the child is more important.

Overall, the court has demonstrated a willingness to restrict, even completely, the parental responsibility of a parent for the benefit of the child. In acting in the best interests of the child, appropriate and proportionate orders can be made to protect against both objective threats and personal fears. In doing so, the court demonstrates just how far it has come since the days of ‘patria potestas’ and ‘mother knows best’.

 

Hannah Martin

 

Tags:
Commercial, Employment, Family, General Civil, Insolvency, Property and Planning, Will Disputes