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Vardags Family Law Essay competition 2023/24 | Fiona Christie

Fiona Christie - BPP University

No Gods! No Masters! No Nations? No Parents?

No Gods! No Masters! - the rallying cry for anarcho-punks, spray painted on the walls of squats the world over. An anti-religious, anti-capitalist mandate that flies in the face of oppressive hierarchy. The slogan is sometimes extended to include no borders, no nations rebuking xenophobic or anti-immigration sentiment. But despite the anarchic ideal, under Article 15 of the Universal Declaration of Human Rights, arbitrary deprivation of nationality - deliberately making a citizen stateless - is prohibited.

The 2019 case of Shamima Begum and all the above came to mind recently when dealing with a case in which a mother in care proceedings wanted the court to extinguish her Parental Responsibility (PR) for her child. We were forced to ask: can a court make a child legally parentless any more than they can make a person legally stateless?

Before considering the power of the courts, it is worth exploring if a parent can just "give up" their PR. Under section 2(9) of the Children Act 1989, A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another but may arrange for some or all of it to be met by one or more persons acting his behalf. However the section continues The making of any such agreement shall not affect any liability of the person making it which may arise from any failure to meet any part if his parental responsibility for the child concerned1; i.e. if the arrangement fails, you are still on the hook for the harm your child may suffer. So, PR cannot be given up so easily even if someone else is willing to stand in. But what about just not exercising it?


In cases brought under the 1980 Hague Convention, a "left behind parent" may be denied a return order if they were not exercising their rights of custody at the time of the removal. What rights of custody are may be jurisdictionally specific and may require the advice of regional experts to clarify. They may not be directly synonymous with PR but the hurdle explores whether the parent was essentially acting as a parent at the time of the removal. If they were not deemed to be exercising their rights, they may not be able to successfully pursue a return, but no court would deny that they still had PR.

If taken to extremes, not exercising PR could end a parent up in public law proceedings. Children are called dependents for a reason and are dependent, fundamentally, upon parents exercising PR for their benefit. In cases of neglect or other harm to a child, we often see Special Guardianship Orders (SGOs) made for other relatives of children who have been neglected or otherwise harmed by their parents. Under an SGO the special guardian shares PR with the parents, but has what we sometimes refer to as an "overriding vote" when it comes to day-to-day decision making on behalf of the child. If no special guardian can be found, Care Orders may be made to a Local Authority where upon they assume PR for the child for the remainder of their minority, much like an adoption. It is clear from section 25 of the Adoption and Children Act 2002 that the court has the power to exchange parental responsibility.

Adoptive parents take on the PR for their new child from either the biological parents or adoption agency as part of becoming their legal parents. But returning to the issue at hand, what power - if any - does the court have to extinguish PR?

Section 4(2A) of the Children Act 1989 makes clear that if an unmarried father has acquired PR by way of any of the methods under Section 4(1), such responsibility can be extinguished by court order. It is a sad truth that in family law, we often see children who have been exposed to domestic abuse. In some cases, particularly in private law proceedings, a parent may seek to prevent the abusive parent from exercising their PR or even ask the court to extinguish it altogether. There are plenty of cases where this has been exercised, Re P3, CW v SG 4, and A v D 5 being the most oft cited. The recent case of F v M 6 reviewed the law and also explored the issue of removing paternal PR when parents are married.

In the case of F v M the father was described by the judge as a parent who has nothing to offer a child and whom the child is better off without. It was found that he had used court proceedings as a method of continuing to exert control and misery over the mother and children. Nonetheless, Hayden J was unable to remove the fathers PR as the parents had been married at the time the children were born. Instead, a raft of protective measures were directed including a Prohibited Steps Order that specifically prescribed, No steps which could be taken by the father in meeting his responsibility for the children of any kind shall be taken by the father without the consent of the court. So, an unmarried father can have PR removed, and a married father can have PR curtailed, but what of a single mother? In the case we were working, there was no father named on the childs birth certificate and mother claimed to have no full name or way of reaching him. The child was already down to one parent with PR. The proposed care plan for the child was an SGO to another relative, but if the mother wanted to relinquish PR, was full adoption or foster care the only legal solution? In the end, the mothers application was not pursued. The SGs would have the overriding vote so if the mother chose not to exercise her PR they need only keep her informed of decision for the child. And thus, the issue was avoided, but the question remains; can a court make someone legally parentless?

The courts of England and Wales do not appear to agree with our American cousins as to the right of children to be able to legally renounce their parents. The emancipation of minors is not something which our laws support, however we reach legal responsibility sooner than children in the US, and courts here will largely not make orders for children over the age of 16.

Historically, we have a fair bit to be grateful to anarchists for, legally speaking. In particular, European labour and employment laws have benefited from their anti-establishment, protest. However, Im with the United Nations General Assembly on this one. Without nationality an individual would be deprived of a host of rights which make up the rich matrix of citizenship. Similarly, without someone to exercise the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property7a childs welfare could not be safeguarded, which is the paramount consideration of the court. So having explored all the possible avenues, it appears the answer is no, a child can not be made legally parentless.

 

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Bibliographies

 Children Act 1989, s2(11)

 Re P (Terminating parental responsibility) [1995] 3 FCR 753]

 CW v SG [2013] All ER (D) 117 (Apr)

 A v D (Parental Responsibility) [2013] EWHC 2963 (Fam)

 F v M [2023] EWFC5

 Children Act 1989, S3(1)

 

 

 

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