“Who has parental responsibility for this child?” is a question which often pops up on forms that you fill out for your child, whether at school or at the doctors. Courts are sometimes required to make a decision about this question too.
The recent case of PM v MB* involved an 11 year old boy called “M”. Since 2003 all unmarried fathers automatically parental responsibility (“PR”) if they are included on the birth certificate, but this child was born prior to that rule change, and the unmarried father in this case did not have it. The mother did not agree he should have it. He therefore asked the court to award him PR in respect of M.
An award of PR would give the father “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.” There are factors set down in case law which help a judge determine whether to award PR or not, which include degree of attachment, degree of commitment, and the reasons for the application. Subsequent case law explained that (i) that it must be in the interests of the child for such an order to be made, and (ii) that the making of a parental responsibility order must be better for the child than making no order. In PM v MB, the appeal judge makes clear in his judgment that a PR order will normally be made and it is only on rare occasions that it will be refused. If the judge has concerns about how the father may use his PR, it may be granted but unreasonable behaviour on the part of the father can be curtailed by use of other court orders, such as a Prohibited Steps Order, preventing certain types of behaviour or action.
In this case the appeal judge considered that refusal to make the order had been the correct course of action: “I am in no doubt that the father would be unable to exercise the order appropriately and responsibly but rather would misuse it in ways which would impact undesirably on [M]…given all I have seen of, and read of and from, the father I find it difficult to see what aspect of parental responsibility he could safely be allowed to exercise.”
Court bars
The appeal judge then agreed that the father should not be able to make any further applications to the court about M for two years. The court will generally consider ordering bars to further applications are put in place (i) as a useful weapon of last resort in cases of repeated and unreasonable applications or (ii) where the welfare of the child requires it, although there is no past history of making unreasonable applications, provided that there is serious risk of unacceptable strain to child and primary carer, if the applications continue**. The father had given evidence that this was a crusade that he would not give up, and consequently, M and his mother needed the protection of the court to have respite from litigation for a 2 year period.
In another recent case involving another child named M, this time a girl aged 13, a bar was applied after 12 years of litigation between the parents about the child. This was not due to any unacceptable behaviour on the father’s part, who was described as “unimpeachable” but because the judge felt it was unacceptable to risk the continuation of the litigation into a thirteenth year. This case is so extraordinary that it deserves a blog post of its own, but suffice to say, the Court of Appeal has held that the delay and conduct of the case (and presumably therefore the bar) has resulted in a breach of the father and child’s Article 8 human right to family life and that the outcome is ‘unjust because of a serious procedural or other irregularity”. Such a bar cannot therefore be used to close the door on litigation on the basis that it has simply gone on too long.
*PM v MB & Anor [2013] EWCA Civ 969
**Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 CA
***A (A Child) [2013] EWCA Civ 1104
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