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Vardags Family Law Essay competition 2023/24 | Hannah Dobson

Hannah Dobson - Liverpool John Moores University

 

In 2022, a petition was submitted to the UK Government and Parliament to automatically suspend parental responsibility rights of a parent guilty of murdering the other parent. This essay shall discuss this reform with reference to relevant statutory and case law as well as academic and legal practice commentary.

There can be few more appalling events for a child and their family than the violent death of one parent where the assailant is the other parent. One of the most prominent challenges arising when considering the application of family law in these circumstances concerns the societal expectations that parents will always act in their childs best interest. This essay will critically evaluate the petitions proposed reforms to automatically suspend parental responsibility rights of a parent convicted of murdering the other parent. It shall explore the themes surrounding this discussion, for instance the unpleasant implications this situation can have on families, and it ought to give insight into the need for intergenerational justice for children, with regard to their physical, mental, spiritual, moral and social development. Furthermore, it will promote the necessity for balancing the convicts right to a parental duty with the childs right to safety and family life, as well as viewing a childs interests as having equivalent value to an adults interests. The proposed reforms will be explored, and a consensus will be reached to determine whether these reforms are appropriately credited to addressing the legal loopholes in the family law legal system.

Current legislation does not automatically terminate a parents parental rights solely because they have committed a criminal act. In the case of a significant conviction, parental rights must be terminated through a separate judicial process, putting the burden on the victims family to demonstrate why the convicts parental rights should be restricted. This essentially allows the convicted parent to maintain power and coercion over their victim, having complete control over their child and enabling them to continue requesting court dealings to control the victims family, thereby denying the family any means of justice for their loss and facilitating a sense of re-victimisation.

The brutal murder of Jade Ward by her estranged husband, Russell Marsh, prompted the need for legal reform in this area. Wards family were horrified to learn that, in these incredibly distressing circumstances, they must face the prospect of continued contact with Marsh. Even though Marsh will not have custody of the children while he is in prison, under the current law he retains parental responsibility, essentially allowing him to retain power and control over Ward through her children. It is acknowledged that the Children Act 1989 (CA 1989) allows for the restriction of parental responsibility from a parent, for example revoking a parental responsibility order, or issuing additional child arrangement orders; nevertheless, this can often be tedious and expensive for families. There are currently no provisions in place for the cessation of parental responsibility when a parent commits such a significant crime.

It is proposed for the Victims and Prisoners Bill to be amended to implement Jades law so that parents who kill a partner with whom they have children will automatically have their parental responsibility suspended upon sentencing. The proposed reforms aim to rectify the shortcomings of the existing system, putting the onus on the convict to go through the legal hoops of proving they deserve parental responsibility, relieving the victims family of this traumatic burden. Moreover, the proposed amendments do not seek to eliminate a convicts entitlement to parental responsibility in all cases; rather, they intend to protect families and children caught up in the most extreme circumstances.

When determining whether a child ought to maintain contact with a convicted parent, the physical, mental, and emotional well-being of the child must be considered. Each child has a right to respect of their family life, but they also have the right to be protected from violence, abuse, and neglect. Given that an individuals past conduct is the best predictor of future behaviour, if a parent has acted in such a careless manner towards their child, this suggests that if the child remains under the responsibility of the convicted parent, they may be subjected to an atmosphere of fear and intimidation. When a parent commits a severely neglectful action of killing a childs other parent, their intentions and capacity to behave in the best interests of the child are further brought into doubt. They are aware that their child will endure numerous losses; they have lost not only a parent to death, but also a parent to imprisonment, as well as losing other relatives, their home and possessions, and their community.

Most children who find themselves in this unfortunate situation will have already been exposed to violent and neglectful domestic abuse. The impacts of witnessing violence on children are underestimated, therefore, the possibility of children suffering emotional and behavioural difficulties in the future is highly likely. Ending the violence after this period allows for early intervention and the removal of all harmful influences from a childs life, which is in the best interests of the childs welfare. Furthermore, it is only reasonable to bring justice not only to the children impacted by this current predicament but also to their future selves and their future generations. The idea that the suggested reform shall automatically suspend parental responsibility will not only allow children and their families to live without the unneeded intrusion of the convicted parent, but it will also provide the child with the right to choose what they want to do in the situation rather than having their rights neglected.

Given that children have differing levels of understanding, and understanding is not absolute, their competence has to be assessed relatively to the issues in the proceedings. Children do have the right to freedom of expression, however, justice for children is regularly shortchanged and existing policies place too much of a premium on adult rights to hold on to children regardless of any ability to care for them. There is a presumption that parental involvement will further the childs welfare, however, focus must be placed on the ascertainable wishes and feelings of the child involved. When a court is faced with a decision regarding the care and upbringing of a child, it must treat the welfare of the child as the paramount consideration in determining the order to be made. It is critical to strike a balance between the rights of the state and the family, as well as the rights of the adult with the rights of the child. Whilst it is necessary to consider both a parents and a childs right to respect for private and family life, where there is a tension between a childs and a parents Article 8 rights, the childs rights shall prevail. It shall be assured that a child who is capable of forming their own views has the right to express those views freely and their views shall be given due weight in accordance with the age and maturity of the child. Again, the proposed reform would allow the child to live without the unnecessary intrusion of the convicted parent, enabling the childs own opinions to determine their future, contingent upon their age and circumstances.

While the proposed amendments aim to correct the shortcomings of the law in this area, the reforms themselves raise a number of issues that must be evaluated in all cases. To begin, when determining whether a parent should automatically have their parental responsibility revoked upon sentencing, this should ideally be considered on a case-by-case basis. There are many reasons as to why and how a parent has killed their partner upon which different sanctions may be necessary to further protect their children. In ninety per cent of 45 families where one parent killed the other, the mother was killed by the father, whereas fathers were the victims in only ten per cent of the cases. If a mother killed the father, it is highly likely that she was experiencing chronic violence or domestic abuse from the partner she eventually killed, and she may have killed the father to protect herself or her child. Consequently, when the father murders the mother, it is frequently the result of years of controlling and abusive behaviour from the father, who purposely kills the mother when she tries to stand up to the abuse or leave. Given the variations in the dynamics of each of these situations, one may argue that treating both of these parents equally in terms of parental responsibility rights would be unjust and unreasonable. The proposed reforms aim to suspend parental responsibility upon sentencing regardless of the circumstances of a case, which could generate issues with justice for domestic abuse victims acting in self-defence, for instance.

It is extraordinarily difficult for two halves of a family divided by an unlawful killing to cope with the consequences of the killing. The importance of the childs local authority taking statutory responsibility by initiating care proceedings, rather than allowing the future of the children to be determined in private law proceedings between grieving and very distressed relatives is of paramount importance for the welfare of the child. In most situations, there will be nowhere for the child to go immediately when the parent is sentenced due to the gaps apparent in the family law system. Therefore, the state must intervene and discuss where the child shall go and what orders shall be made in respect of the child. This brings the efficacy and appropriateness of the proposed reforms into doubt, given that specific procedures must be taken to consider where the child should go, alongside any safeguarding measures that can be implemented to assure the childs safety.

Pursuant to section 31 a local authority may apply to the court for an order that a child be placed into the care of a designated local authority if the child is suffering, or is likely to suffer, significant harm and if the harm, or likelihood of harm, is attributable to the care given to the child, not being what is reasonable to expect a parent to give to them . Given that one of the childs parents is deceased and the other imprisoned, there can be no reasonable arrangements made here for the childs parents to care for them. Instead, a care order could be made to the local authority which can act in partnership with the child and their relatives to plan where the child can live and how they shall keep in contact with key adults in their life. With this framework put in place, it could be possible for the child to live with either their maternal or paternal relatives. Alternatively, a prohibited steps order or special guardianship order could be made to provide for the child to stay within the care of their extended family. If no question of legal intervention shall arise in this arrangement, this shall determine who will care for the child. These issues reinstate the importance of coordination and communication between professionals involved in the social work and supportive services involved in the childs situation. This is now an added element that must be considered when these reforms come into place as it is not only paramount to consider the childs situation, but also the work of the local authority involved, and their communication must be quintessential.

It has become clear from this discussion that, in terms of the law governing parental responsibility and child rights, when one parent is found guilty of murdering the other parent, reform of the law to suspend the convicted parents parental responsibility over their child where the parent has committed a serious crime is long overdue. The proposed reform underscores the importance of prioritising the childs welfare in cases involving criminality where the child may be at risk, particularly in cases of domestic violence. It reinforces the principle that the childs welfare must take precedence over the parental rights of the convicted offender. Accordingly, this reform is a welcome change to the law surrounding this issue that will mean bereaved families will not have to adhere to the same legal processes to move on and care for the children whose parents have been killed by a parent sharing parental responsibility.

Many aspects of this proposed amendment may cause challenges for local authorities and overly optimistic social workers; however, with the reforms in place, all parties involved in the process will have a standard framework for what will happen to a child in a situation where their parents parental rights are suspended, allowing for a clearer process, protecting the childs welfare, and ensuring that the childs rights are of the utmost importance.

 

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Bibliography

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