Edward Bennett – Between a rock and a hard place: Mothers abroad, private law proceedings and parental responsibility
21st Mar 2025 | Blog
Many debates around parental responsibility concern fathers and second parents. By way of example, should the law permit a married father to be deprived of his parental responsibility where he has perpetrated significant abuse against his wife or child?
What gets significantly less attention, is the position of mothers and parental responsibility, and the way in which private international law can impact upon it in ways which are not envisaged by domestic law. One such issue is explored here.
At common law, a child’s ‘mother’ is the person whose egg is inseminated in her womb and who then becomes pregnant and gives birth to him or her, see R (on the application of TT) v Registrar General for England & Wales & Ors [2019] EWHC 2384 (Fam). Adopting that definition, a mother of a child always has parental responsibility for that child under the Children Act 1989 statutory scheme. This cannot be removed, suspended, or altered in any way at any time, unless a mother loses her legal status as a parent as a result of adoption or a parental order. It can, of course, be restricted by court order, sometimes comprehensively so.
A number of overseas jurisdictions allow for a mother’s parental responsibility (or equivalent) to be removed, including in the context of private law proceedings. Some of those are Contracting States to the 1996 Hague Convention (the ‘Convention’). The attribution, exercise, termination or restriction of parental responsibility, as well as its delegation, falls within the scope of the Convention, insofar as it does not relate to adoption or establishment of parental status. If, in the context of private law proceedings, a mother’s parental responsibility is terminated in one Contracting State, that measure, per Article 23(1) of the Convention, is to be recognised by operation of law in all other Contracting States, subject to the limited grounds for the refusal of such recognition in Article 23(2). If that mother’s child comes to live in England, she is arguably worse off than a mother who has always lived here. The former’s lack of parental responsibility would stand to be recognised in England under the Convention, whereas the issue would never arise with the latter.
Where the Convention does not apply because the overseas jurisdiction is not a Contracting State, the English courts have been prepared to recognise the termination of a mother’s parental responsibility at common law. In X & Anor v M [2022] EWFC 168, either public or private law (but not adoption) proceedings overseas resulted in the consensual termination of a mother’s parental responsibility in circumstances where she had been found guilty in overseas criminal proceedings of murdering her child’s father. In subsequent English adoption proceedings, the court had to consider whether the mother was a ‘parent’ for the purposes of the Adoption and Children Act 2002. If she was, requirements to serve her with notice of the proceedings or to either obtain or dispense with her consent to adoption, would be engaged. On those extreme facts, Judd J recognised the overseas order, concluding, § 21:
“21. Following the authorities above, I have concluded that this court can and should recognise the order made by the court in Country A in 2009. Parental responsibility under the law of Country A is defined very much as it is here. The mother and K were domiciled and habitually resident there at the time of the making of the order and the mother was legally advised at the time she gave her consent. The reasons for her doing so were overwhelmingly and in the best interests of the child, and the order made and acted upon many years ago. The fact that there is no corresponding provision here to terminate a mother’s parental responsibility should not mean that a decision to that effect in another country cannot be recognised if there are no reasons of public policy to the contrary. There is no doubt that the court would have been able to recognise an order terminating a father’s parental responsibility and it would seem anomalous if the same principle could not apply to a mother in these circumstances”
Some jurisdictions provide for the possibility for parental responsibility to be re-acquired, where it has been lost as a result of a judicial decision. In protracted litigation in those jurisdictions, parental responsibility might be lost and re-gained by one parent or another on a number of occasions, including by way of interim measures. I have had direct professional experience of this occurring.
Where, following her parental responsibility being terminated, a mother remains living in her home country but the child moves lawfully to England, that mother is arguably between a rock and a hard place. On the one hand, if say proceedings are concluded, the home country is unlikely to retain jurisdiction to determine whether she can re-acquire parental responsibility. On the other, there is no mechanism within the Children Act 1989 statutory scheme for her to re-acquire it, as that scheme assumes that she will always have it.
Are there remedies for this situation? In practical terms, does it even really matter?
On the one hand, save in respect of adoption or revocation of parental status, a mother subject to an overseas order terminating her parental responsibility is not going to cease, either in fact or in law, being that child’s mother. She would retain her standing to apply for orders under s.8 Children Act 1989 by virtue of s.10(4)(a) and s.10(5)(a) of the Children Act 1989. A court could make such orders without addressing parental responsibility, applying the same best interests test that would be applied by the court when considering whether to lift restrictions on the parental responsibility of an English mother. Further, in the Convention context, whilst Article 23(2)(d) provides that recognition may (discretion ?) be refused “if such recognition is manifestly contrary to public policy of the requested State, taking into account the best interests of the child”, this is a high bar, and there may well be good reason for an English court to recognise such an order.
On the other hand, given the way in which English family law has evolved over the last century, is it now a core principle of that law that married fathers and all mothers have parental responsibility for their children, irrespective of their separate status as their children’s biological parents, see Re A (Parental Responsibility) [2023] EWCA Civ 689 ? Would affording recognition to an overseas order going against this principle be contrary, or manifestly contrary, to English public policy ? They are locked out of utilising the Children Act 1989 to acquire one of the very concepts that underpins it, whereas unmarried fathers, step-fathers, or second female parents, if they loose parental responsibility under the Act, are not precluded from applying for it again. That they are able to do so is not necessarily a matter of abstract theory. Whilst not an exact parallel, take, for example, care proceedings where the parental responsibility of a non biological father is removed by declaration at the commencement of proceedings, but is re-granted via a ‘lives with’ order or Special Guardianship Order.
Further, it might be argued that inability of mothers (or married fathers) to apply for parental responsibility is incompatible with Articles 8 and 14 of the European Convention on Human Rights. Article 8 is clearly engaged, and there is prima facie discrimination between mothers and married fathers on the one hand, and other parents on the other. It is arguable that there was no legitimate aim for this discrimination, or aim at all, given it is seemingly unintentional. Neither could there be any ‘less intrusive’ means to achieve it. Further, it is debatable whether the difference in positions is minimal, as there may be, on any given facts, powerful welfare reasons why a re-grant of parental responsibility is preferable to the alternative list of specific issue orders, particularly where the Family Court ‘looks to the future’.
The last century of English law has seen the principle of unmarried mothers and married fathers holding parental responsibility, with successive amendments to address the position of married mothers, unmarried fathers, and other parents. The law of other jurisdictions can have profound consequences, unconceived of by English legislation. The international dimension to family law is longstanding and here to stay. We all need to take note of it.
Edward Bennett
2025
