Ordinarily, the law expects those with parental responsibility to work together to reach agreements in children’s best interests. Ultimately, if those with parental responsibility cannot resolve a dispute, the court can be asked to make a decision as a last resort.
It is very rare for parental responsibility to be taken away or restricted. But what happens if a parent is exploiting their parental responsibility to exercise coercive control and abuse the other parent? That is exactly what happened in the case of F v M [2023] 2 FLR 156.
The case had a long history dating back to 2017. By the time the appeal was decided, the two children were eight and five years old. Findings had been made at an earlier fact-finding hearing, including: the father had coercively controlled the mother throughout their relationship (by restricting her access to ante-natal care, isolating her from friends and family and controlling her access to money and food); the father raped the mother on more than one occasion; and the father’s behaviour exposed the children to emotional harm. Those findings were not appealed. The judge commented, “… I have found the father to be a serious danger to the physical and emotional safety of women and children. His evidence at this hearing revealed him, once again, to be narcissistic, arrogant, and entirely devoid of empathy for his former partner and the children.”
Eight weeks later, the father made a new application. The judge commented that the father’s application “… reveals, at best, an arrogant lack of empathy for the effect that the protracted proceedings had already had on the mother and the elder child, Y. More than that, however, it reveals how the father has used the Court proceedings as a different facet of controlling behaviour.”
When can parental responsibility be taken away?
Whether it is possible to terminate parental responsibility depends on a person’s status. The parental responsibility of an unmarried father, second female parent or step-parent can (albeit rarely) be discharged by court order. The court has terminated parental responsibility in the following circumstances:
- an unmarried father inflicted serious non-accidental injuries on the same day he entered into a Parental Responsibility Agreement (Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048)
- an unmarried father pleaded guilty to sexual offences on two of the mother’s children (CW v SG [2013] EWHC 854, upheld by the Court of Appeal in D (A child) [2014] EWCA Civ 315)
- an unmarried father was imprisoned for false imprisonment and grievous bodily harm of the mother, which the child witnessed (A v D (Parental responsibility) [2013] EWHC 2963)
By contrast, a mother or married father can only lose parental responsibility if an adoption or parental responsibility order is made. In those circumstances, if it is not in the child’s welfare interest for parental responsibility to be exercised, it is possible for the court to make a prohibited steps order. This could prevent the parent from taking specific steps they would normally be entitled to take, or, in exceptional cases, prohibit the parent from taking any step at all in the exercise of parental responsibility.
If parental responsibility cannot be taken away, can it be restricted?
In F v M, the parents were married when the children were born, so the father had parental responsibility that could not be terminated. Instead, protection was offered by a prohibited steps order (preventing the father from exercising his parental responsibility). “Thus, whilst the legal status of a married father remains intact, it can be stripped of any potency to reach into the lives of the mother and children. His ability adversely to affect the welfare of either may be effectively prevented.”
This was combined with an order under section 91(14) of the Children Act 1989. This allows family courts to prevent individuals from making further specified applications under the Children Act without permission of the court (therefore acting as a protective filter, rather than a complete bar on applications). “The section provides a powerful tool with which Judges can protect both children and the parent with whom they live, from corrosive, demoralising and controlling applications which have an insidious impact on their general welfare and wellbeing and can cause real emotional harm.”
Family proceedings as a form of coercive control
The interplay between domestic abuse and family proceedings is increasingly recognised. In a July 2023 report (The Family Court and domestic abuse: achieving cultural change), the Domestic Abuse Commissioner noted that perpetrators of abuse are sometimes using the Family Court as a form of abuse and control “by keeping the survivor engaged in aggressive, expensive and stressful litigation”.
Progress has been made since the Harm Panel report in 2020, and the July 2023 report makes further recommendations to improve the Family Court experience for victims of domestic abuse. The Domestic Abuse Commissioner concludes:
I am hopeful that the next several years will be a turning point in how the Family Court addresses domestic abuse allegations.
Written by Lydia Hutchinson, Associate from Charles Russell Speechlys
