Withdrawal of Parental Responsibility: Lost Authority and a Lost Opportunity
| Published date | 01 November 2015 |
| Date | 01 November 2015 |
| DOI | http://doi.org/10.1111/1468-2230.12160 |
Withdrawal of Parental Responsibility: Lost Authority and
a Lost Opportunity
Stephen Gilmore*
This comment examines Re D (Withdrawal of Parental Responsibility), the first reported Court of
Appeal decision on withdrawal of parental responsibility pursuant to section 4(2A) of the Children
Act 1989. It demonstrates that the Court overlooked earlier Court of Appeal authority, resulting
in tension in the Court’s guidance. The comment criticises the Court of Appeal’s characterisation
of parental responsibility as entirely child-centred and its uncritical acceptance that the child’s
welfare is the paramount consideration in applications for withdrawal of parental responsibility. It
argues that such an approach may not adequately respect the parent’s interests in retaining parental
responsibility, especially in the context of an order which is more draconian in effect than a care
order. The impact upon applications for removal of parental responsibility of the new presump-
tion of parental involvement, which was implemented shortly after the decision in Re D, is also
considered.
INTRODUCTION
Re D (Withdrawal of Parental Responsibility)1(Re D) is the first reported Court of
Appeal decision on an application for the removal of a father’s parental respon-
provisions permit removal of parental responsibility by a court order where it was
acquired in the ways set out in section 4(1) of the Act, through a parental
responsibility order or agreement, or birth registration. This contrasts with the
position of a child’s mother or a parent of the child who is the mother’s spouse
or civil partner at the time of the child’s birth. In such cases parental responsibility
is conferred by section 2 of the Children Act 1989 and cannot be removed
except by way of the child’s adoption or, where applicable, a parental order
under section 54 of the Human Fertilisation and Embryology Act 2008.3In Re
D, a father appealed Baker J’s order, reported as CW vSG (Parental Responsibility:
Consequential Orders),4removing the father’s parental responsibility of his 8
year-old son, D, which he had previously acquired through birth registration.5
*Professor of Family Law, King’s College London.
2 Section 4 provides: ‘(2A) A person who has acquired parental responsibility under subsection (1)
shall cease to have that responsibility only if the court so orders.
(3) The court may make an order under subsection (2A) on the application –
(a) of any person who has parental responsibility for the child . . .’
3 These distinctions are not uncontroversial and a case can be made for all forms of parental
responsibility, however conferred, to be capable of removal. For discussion, see J. M. Scherpe,
‘Establishing and Ending Parental Responsibility: A Comparative View’ in R. Probert, S. Gilmore
and J. Herring (eds), Responsible Parent and Parental Responsibility (Oxford: Hart Publishing, 2009)
43.
5 Under Children Act 1989, s 4(1)(a).
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Withdrawal of Parental Responsibility: Lost Authority and a Lost Opportunity
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited.
1042 (2015) 78(6) MLR 1028–1056
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