Cambridge Family Law Practice

The mother of two children has unsuccessfully appealed against a family court’s refusal to declare a key piece of legislation incompatible with the European Convention on Human Rights

The case concerned two siblings, born in 2007 and 2010. Their parents had married in 2006. According to Sir Andrew McFarlane, sitting in the Court of Appeal, the father was emotionally, physically and sexually abusive towards the mother during the marriage and also oppressively coercive, constantly attempting to limit and control her behaviour. Coercive control became an offence across England and Wales in 2015.

As President of the Family Division, Sir Andrew is the country’s most senior family law judge.

In 2013, the inevitable happened: the marriage broke down and the parents separated. The children remained in the day-to-day care of their mother. But the father’s threats and abuse continued and both the Police and social services eventually intervened. He was no longer permitted contact of any kind with his former family and the mother and children were relocated to a safe house on the advice of the Police. This resulted, Sir Andrew explained, in:

“…the loss to the children of their familiar home, friends and school.”

Their names were also changed.”

The children have now had no contact with their father since December 2016. In 2018, the father was charged with breaching a non-molestation order – a legal order prohibiting him from making contact any kind with his former wife and children. When the man was later diagnosed with paranoid schizophrenia, the courts issued both an indefinite restraining order, under the Protection from Harassment Act 1997, and a hospital order, specifying that he should be restrained in secure facilities.

In his judgement, Sir Andrew noted:

“The children, particularly…the eldest, have clear recollections of their father’s violent and disturbing behaviour. [An earlier Judge] found that the cumulative impact upon [the oldest child] of the father’s behaviour had been profound.”

The same earlier Judge noted that

“…it is almost impossible for those who have not experienced it to understand the powerlessness, lack of control over one’s own life, fear and trauma induced in victims of stalking. [The mother] has suffered from PTSD (and is prescribed medication for anxiety) which is directly attributable to [the father’s] abusive behaviour and harassment.”

The mother sought a declaration that the Children Act 1989 was incompatible with Articles 8 and 14 of the European Convention on Human Rights, because it does not allow parental responsibility to be revoked once it has been ‘given’ to a married father. Article 8 protects the right to private and family life, while Article 14 governs the right to freedom from discrimination. Parental responsibility, meanwhile, is part pf the legal status of being a parent.

Her initial application was refused but she was given permission to appeal. Sir Andrew explained the basis of her case:

“The focus of the present appeal is upon the distinction that is made within the Children Act 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… 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.”

But the Court of Appeal was unpersuaded, saying the difference in the treatment given to unmarried versus married parents was deliberate, drawn up in order to promote and encourage marriage by granting a special status to married fathers. The President of the Family Division declared:

“The … 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.”

He added:

“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.”

Consequently, the mother’s appeal was dismissed.

Jeremy Ford, one of the partners here at Cambridge Family Law Practice, observes: “This is a very sad case of a family left with ever-lasting scars caused by the husband/ father. I can understand why the children and their mother may want the legal status of the father to be removed, such as to reflect the situation on the ground, being that he no longer has any role in the children’s lives. Despite changes in society, there is still a legal bias towards marriage, as an institution – rightly or wrongly.”

You can read the full ruling here.