Family Law

Eighth edition

by Kate Standley

Updates for Chapter 9: Parents

May 2014 update

9.4 Unmarried father and parental responsibility

9.4 (b) (iii) Acquiring parental responsibility by parental responsibility order

In Re M (Parental Responsibility Order) [2013] EWCA Civ 969 Ryder LJ held that the status conferred by parental responsibility was an important legal recognition of the delicate balance between rights, duties, powers, responsibilities and authority that are the components of family and private life. It was not, however, a separate 'stand alone' factor, let alone a presumptive factor to be weighed alongside the other factors from Re S (Parental Responsibility) [1995] 2 FLR 648 in the welfare consideration of whether or not a parental responsibility order should be made

9.10 Surrogacy

9.10 (a) Introduction

The Foreign and Commonwealth Office has published a guide for British nationals who are considering entering into a surrogacy arrangement in a foreign country (see Surrogacy Overseas, available at www.gov.uk).

Informal surrogacy arrangements - a cautionary tale

In the following case, King J warned of the serious legal and practical difficulties which can arise for couples who enter into informal surrogacy arrangements.


January 2014 update

9.4 Unmarried fathers and parental responsibility

9.4(b) The unmarried father - acquiring parental responsibility

In the following case the father successfully appealed against the magistrates’ refusal to grant his application for a parental responsibility order (PRO). It reinforces the principles laid down in earlier rulings that parental responsibility is about conferring an important status on a father and that this should be separated from evidence about a father’s actual and predicted future role with regard to a child.

W (Children) [2013] EWCA Civ 335
The father applied for a PRO (and for contact) but the magistrates dismissed his application because the mother ‘has such a real fear of the father playing any role in her child's life’ and if they made a PRO it would ‘significantly adversely affect the child’s future stability and well-being’. Thorpe LJ held that the magistrates had erred in law by not applying the principles in the leading judgment on parental responsibility, namely Re C & V [1998] 1 FLR 392 and quoted the following key passage of Ward LJ's judgment:
. . . it should be understood by now that a parental responsibility order is one designed not to do more than confer on the natural father the status of fatherhood which a father would have when married to the mother. There is also a sad failure fully to appreciate, when looking at the best interests of the child (which are paramount in this application, as elsewhere) that a child needs for its self-esteem to grow up, wherever it can, having a favourable positive image of an absent parent; and it is important that, wherever possible, the law should confer on a concerned father that stamp of approval because he has shown himself willing and anxious to pick up the responsibility of fatherhood and not to deny or avoid it.


Thorpe LJ held that the magistrates had erred in their approach by linking the two applications (for a PRO and contact) when they were two quite separate issues.

9.4(c) Termination and revocation of parental responsibility agreements and orders

Father’s parental responsibility terminated by court order

Only in rare cases will the court decide that contact should be terminated, but in the following case the father’s behaviour was found to be sufficiently violent to justify the court terminating his parental responsibility in the best interests of the child:

A v. D (Parental Responsibility) [2013] EWHC 2963 (Fam)

The mother applied inter alia for an order terminating the father's parental responsibility of their child, aged 4 years and 7 months old. The father had a very extensive criminal history involving numerous violence related offences, and had perpetrated very severe domestic violence against the mother which had left her, amongst other things, suffering from post-traumatic stress disorder. The child had witnessed the violence and had complex needs. At the time of the hearing the father was serving a term of imprisonment for GBH against the mother. He had not attended court or engaged with the proceedings save for having written to the court to indicate that he did not oppose the mother's applications. Roderic Wood J considered the applicable legal principles laid down in Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048 and CW v. SG [2013] EWHC 854 (Fam), and held that the father's parental responsibility should be terminated. He had shown a lack of commitment to the child. His interest lay principally in controlling the mother, and to leave the mother sharing parental responsibility with the father would be intolerable to her.

9.7 Parents and children – medical treatment

Court orders child’s medical treatment to be withdrawn

In An NHS Foundation Trust v. R (Child) & Ors [2013] EWHC 2340 (Fam) the High Court ruled that a severely disabled 14-month-old child should be allowed to die ‘in comfort’ rather than be left to suffer through continued treatment. The parents had wanted the child to move to live at home with a package of care including long-term ventilation. The doctors considered that this would be too burdensome for the child and that it would be in his best interests for ventilation to be withdrawn.

9.7(d) Where parents cannot agree about medical treatment

Young child ordered to have an emergency bone-marrow transplant against the wishes of his father

In December 2013 The Independent newspaper reported that Mostyn J in the Family Division of the High Court had in an emergency hearing ruled that a child, who had been born in an Arab country and had spent his last two years in a leading English children’s hospital, should have a life-saving bone marrow transplant despite the contrary wishes of his father. The mother, who was estranged from the father, was the bone marrow donor. She wanted the procedure to go ahead and was unable to attend court because she was giving blood in preparation for the operation. The children’s hospital had applied to the Family Court to intervene and the child was made a ward of court. A second hearing was held to decide his treatment. Without the transplant it was certain that the child would soon die.

9.10 Surrogacy

9.10(c) Surrogacy and parental orders

In Re A & B (Parental Order Domicile) [2013] EWHC 426 (Fam) Mrs Justice Theis in the High Court granted a parental order to a same sex couple from California who had conceived a child through a surrogacy clinic in India but who were now living in the UK. One of the couple was the biological father of the child, via an anonymous egg donor. Mrs Justice Theis found that they were now domiciled in the UK, there were no concerns and a parental order was in the child’s best interests.


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