The termination of parental responsibility (“PR”) is an incredibly contentious topic currently circulating in the media. In the wake of the murder of Jade Ward, who was killed by her former partner in 2021, her family campaigned tirelessly for a change in the law to ensure her murderer was unable to take part in decisions relating to their four children.

Stewarts (acting on a pro bono basis) was recently successful in securing the termination of parental responsibility (defined below) of a father who had pleaded guilty to making indecent images of children. In this article, Lea Levine considers whether the automatic suspension of PR under “Jade’s Law” should extend to individuals convicted of sexual offences against children.

Jade Ward’s family argued that her killer’s involvement in the upbringing of their children would inflict further trauma on the children and Jade’s family. The “Jade’s Law” campaign gained traction and resulted in the amendment of the Victims and Prisoners Bill. This now provides that a parent who kills a partner or ex-partner with whom they have children will automatically have their parental responsibility suspended upon sentencing.

This applies only to individuals convicted of the murder or voluntary manslaughter of a person with whom they share parental responsibility.

Definition of parental responsibility

“Parental Responsibility” is formally defined in Section 3 of the Children Act 1989 as follows: “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.”

In Re EMP (A Child) (Re Section 8 of the Children Act 1989) [2024] EWFC 12, His Honour Judge Baker categorised parental responsibility as follows:

“If you have parental responsibility, your most important roles are to:

• provide a home for the child
• protect and maintain the child

You’re also responsible for:

• disciplining the child
• choosing and providing for the child’s education
• agreeing to the child’s medical treatment
• naming the child and agreeing to any change of name
• looking after the child’s property.”

As a parent, it may be surprising to learn that parental responsibility carries legal weight. The day-to-day decisions an individual with PR may make were helpfully categorised in A v A (Shared Residence) [2004] EWHC 142 as follows:

1. Decisions that could be taken independently and without any consultation or notification to the other parent:

• how the children are to spend their time during contact
• personal care for the children
• activities undertaken
• religious and spiritual pursuits, and
• continuance of medicine treatment prescribed by GP.

2. Decisions where one parent would always need to inform the other parent of the decision but did not need to consult or take the other parent’s views into account:

• medical treatment in an emergency
• booking holidays (or, in some instances, taking the children abroad in contact time), and
• planned visits to the GP and the reasons for this.

3. Decisions that you would need to both inform and consult the other parent prior to making the decision:

• schools the children are to attend, including admissions applications
• contact rotas in school holidays
• planned medical and dental treatment
• stopping medication prescribed for the children
• attendance at school functions so they can be planned to avoid meetings wherever possible, and
• the age children should be able to watch videos, ie videos recommended for children over 12 and 18.

Who possesses parental responsibility?

A mother will always have PR for their child pursuant to Section 2(2)(a) and (2(2A)(a) of the Children Act 1989. If the child’s mother is married/in a civil partnership with someone when the child is born, both have PR of the child.

An unmarried father can also get PR by being named on the child’s birth certificate, successfully applying to the court for a PR order, or entering into a PR agreement with the mother.

A PR agreement with the mother must be in the prescribed form set out in the Regulation 2 Parental Responsibility Agreement Regulations 1991 and signed by both parents before a witness.

A father’s PR application must be made to the Family Court. Broadly, the court will consider the following:

1. The welfare of the child,
2. The degree of commitment the father has shown towards the child,
3. The degree of attachment between the father and child, and
4. The reasons why the father is applying for the order.

Applications to terminate PR

The only mechanisms for terminating the PR of a mother is by way of a parental order (Human Fertilisation and Embryology Act 2008, section 54) or by way of an adoption order (Adoption and Children Act 2002, section 46(2)). The same mechanisms apply for the termination of a father’s PR or that of a second legal parent when married to/in a civil partnership with the mother of a child.

Where the PR in question pertains to an unmarried father, second female parent or a stepparent, an application can be made to the court by the other PR holder (or by the child) to terminate their PR pursuant to the Children Act 1989, section 4(2A) or section 4ZA.

In Stewarts’ case involving indecent images of children, Stewarts applied for the termination of the father’s PR pursuant to section 4(2A) of the Children Act 1989 or, in the alternative, restricting how it may be exercised by way of a prohibited steps orders.

Key concepts when considering an order to terminate were first outlined in RE P [1995] 1 FLR 1048, as summarised below:

1. The starting point is that the exercise of PR is a laudable desire that is to be encouraged rather than rebuffed. Furthermore, once obtained, PR should not be terminated on less than solid grounds, with a presumption for continuance rather than termination,
2. The welfare of the child,
3. Evidence of attachment and a degree of commitment, and
4. The presumption being that, other things being equal, a parental responsibility order should be made rather than withheld in an appropriate case. The question of whether the father would be granted PR if he did not have it and was making an application to the court now forms key guidance for the judiciary.

While the determining factor in an application to terminate PR will be the child’s welfare, consideration of the welfare checklist is not mandatory (D v E (Termination of Parental Responsibility) [2021] EWFC 37). The welfare checklist is a tool set out in section 1(3) of the Children Act 1989 and guides the court and other professionals when making or determining applications regarding a child under the Children Act 1989. The checklist invites the court to consider:

1. The feelings and wishes of the child concerned,
2. Educational, emotional and physical needs of the child,
3. Sex, background, age or any other relevant feature of the child,
4. Any harm suffered or potential risk of suffering,
5. The capabilities of the parents/other related persons,
6. The impact of the child should there be a change in their circumstances.

However, in Re D (Withdrawal of Parental Responsibility) [2015] 1 FLR 166, the court made clear it is not prevented from considering the welfare checklist in cases concerned with the termination of PR, as it provides a helpful analytical framework for considering the child’s welfare, which is the court’s paramount consideration.

Indeed, in Stewarts’ recent case, the judge relied heavily on the harm the child has suffered or was likely to suffer in the future as a result of the father maintaining his PR in light of his criminal conduct. The judge also considered the negative impact this would have on the mother’s wellbeing and, consequently, her ability to parent.

The court must also consider the ‘no order principle’ which is a key principle of family law set out in section 1 of the Children Act 1989 stating that a court shall only make an order in relation to a child if this is better for the child than making no order at all. In the recent case of Re EMP, His Honour Judge Baker opined that the ‘no order’ consideration is best discussed in the context of proportionality. His Honour Judge Baker then helpfully listed the options available to the court when dealing with the termination of PR:

1. Leave PR as it is, unfettered,
2. Leave PR but make a specific issue or prohibited steps order to regulate specific rights that can be exercised with PR, or
3. Revoke PR.

If a judge feels that court interference is necessary and proportionate to safeguard the welfare interests of a child, it must go on to consider the extent to which interference is necessary (ie, limiting PR or removing it altogether). Helpfully, His Honour Judge Baker’s judgment included scenarios in which it is proportionate to remove a father’s PR. If the father:

1. Has no contact with the subject child,
2. Has caused significant harm to the subject child’s mother,
3. Makes no substantive acknowledgement of any of the findings,
4. Where the practical exercise of PR relates solely to ‘rights’ flowing to the father,
5. Where the father’s continued involvement in the child’s life, even at the periphery, adversely affects the mother, therefore indirectly affecting the child, and
6. Where there is a positive welfare benefit to the child in revoking PR.

In borderline cases, where a judge is minded to restrict parental responsibility by way of prohibited steps orders rather than terminating it entirely, it is advisable to consider the difficulties of ensuring that any prohibited steps order is robust enough to account for all circumstances and eventualities in which the father’s PR may need to be limited during the child’s minority. This aligns with the Re EMP case, which stated that in ‘consideration of the day-to-day elements of PR that remain to be exercised, it is difficult to identify what should be left or what may raise itself as an issue in the future.’ This is vital to ensure that the PR is restricted to such a point that it ensures a positive welfare solution for the child. The representative value of PR is also significant when deciding between restricting and terminating it. Allowing an individual to retain the legal status, beyond the practical rights and responsibilities, can be detrimental to both the co-parent and child if they have acted in an illegal or improper manner towards that co-parent or child.

Conclusion

Partner Richard Hogwood says: “It is important to note that ‘Jade’s Law’ only constitutes a suspension of PR for the duration of any custodial sentence in a prison or other place of detention, rather than a termination pursuant to the Children Act 1989, section 4(2A). As the amendment has yet to reach royal assent, it is unclear whether the perpetrator regains their PR automatically at the time of release. If that is the case, it is vital families seek relevant expert legal advice to consider whether to bring proceedings for termination.

The suspension of PR for those convicted of murdering their co-parent is a welcomed advancement in the law. However, to ensure bereft families are not faced with lengthy proceedings in the family court to apply for the termination of PR, it is queried whether the suspension should be extended to cover individuals convicted of sexual offences against children.”