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Syvil Lloyd Morris, Solicitor Advocate and co-founder of Bastian Lloyd Morris LLP, explores the concept of parental responsibility and LAA funding issues in the context of a changing society.

Syvil Lloyd Morris, Solicitor Advocate and co-founder of Bastian Lloyd Morris LLP

The family is an important institution in all societies. In the words of Shakespeare, ‘[t]he voice of parents is the voice of gods, for to their children they are heaven’s lieutenants’. However, our ‘millennial and existential values’ (Chiriluta, 2022), have conspired to change the modern shape of the family, and indeed the dynamics of parenthood. In our diachronic society, divorce has been made easier, same-sex unions may now be recognised as lawful marriages, and children may simultaneously have different gestational as well as biological mothers; also ‘social and psychological parents’ or ’emotional parents’, together with biological ones, regularly combine to engage in children’s upbringing (see e.g. Re G [2006] UKHL 43).

In this article, unless the context admits otherwise, the term ‘parent’ should be taken to include the term ‘long-term carer’. All statutory references are to the Children Act 1989, unless stated otherwise.

The purpose of this article is to explore the concept of parental responsibility (PR), specifically through the lens of LAA funding issues, and more generally through the periscope of a changing society. We suggest possible changes to funding regulations, procedural rules and the substantive law, as it relates to PR in certain circumstances.  We have limited our suggested changes, because of the confines of space, but all are made with an eye on the changing face of the family and facilitating access to justice for parents in public law proceedings. This necessitates not only a survey of what PR is, and its nature and effect, but also an overview as to how it is acquired. It is to a consideration of these important matters that we now turn.

For more than 30 years there has been a statutory requirement for social workers to explore ‘friends and family’ as placement options for children, where their biological parents are not able to cope (s. 23 (6)). In this context, it should not be forgotten that biological parents may also present their children to the care system on a voluntary basis (s. 20). One of the overarching principles in the Public Law Working Group’s Best Practice Guidelines on Supervision Orders is that ‘children are best looked after within their families, with their parents playing a full part in their lives, unless compulsory intervention in family life is necessary’. Therefore, the care system itself creates a substantial cadre of ’emotional parents’. All of this, together with the high number of second (and even third) marriages has reconfigured the extended as well as the nuclear family to include relatives of lineal descent and also relatives derived from ‘collateral’ family relationships. That is the terminology used in M v D [2021] EWHC 1351(Fam). 

According to the Office for National Statistics, approximately 10 per cent of dependent children have lived with a step-family. If the parents’ relationships break down, such children do not always end up being cared for by the biological parent – for an interesting example, see Re F and G (Discharge of Special Guardianship Order) [2021] EWCA Civ 622. Thus, what we survey in the fog of life’s battles does not always match the idealised picture of ‘the family’ that a patriarchal society has handed down to us. In these circumstances, the concept of ‘parent’ stretches far beyond biological affiliation. Yet not all parents have equal access to justice in care proceedings, as there is a requirement for either biological parenthood or parental responsibility (PR) before the Legal Aid Agency (LAA) will automatically grant non-means tested, non-merits tested legal aid, so-called ‘free legal aid’ (r. 2 Civil Legal Aid (Merits Criteria) Regulations 2013). In our view this not only sets the bar too high, but fails to  reflect current reality.

Munby J (as he then was) was not deploying gratuitous hyperbole when he observed that,  since the abolition of the death penalty, it is now the Family Court that makes the most Draconian orders,  (Re L (Care: Assessent: Fair Trial [2002] EWHC 1379 (Fam)). Furthermore, in Re B (Children) (Care Proceedings: Standard of Proof) (Cafcass Intervening) [2008] UKHL 35, 2009 AC11 Baroness Hale said: ‘taking a child away from her family is a momentous step, not only for her but for her whole family, and for the local authority which does so.’ Put yet another way, ‘care proceedings present a difficult problem. They are positioned as civil proceedings but have many effects on parents which are closer to those of criminal proceedings’ (Masson, 2008). Thus, given such high stakes, and the changing face of the family in modern-day society, we feel driven to pose the questions: Is the concept of PR still serviceable as the premier standard to facilitate access to public funding in care proceedings? Also, given that PR is a morally desirable status, is there any reason why certain parents should have to ‘acquire’ it, but others do not? We consider these questions to be pertinent ones, not only because of the rising number of care proceedings, and the mandate that these must be concluded speedily, but also because of the parallel prevailing wisdom that costs in care proceedings should be kept to a minimum.

Essentially, biological mothers and fathers with PR have an automatic right to be joined in care proceedings, but all other parents need to make a formal application to be joined. The court, of course, has control over who are made parties to care proceedings (FPR, 2010 r 12.3 and PD 12C) – there is much jurisprudence about this (see e.g. Re R (Care Proceedings Joinder of Foster Carers) [2021] EWCA Civ 875; Re B (Children) [2021] EWCA Civ 1221; RE B-A (Children: Joinder of Grandmother [2011] EWCA Civ 1643; KS v Neath Port Talbot County Borough Council & Ors [2014] EWCA Civ 941) – however, as we have already highlighted, only biological parents and parents who have PR are automatically entitled to ‘free legal aid’.  All other parents have to enter the labyrinthine LAA battle ground in order to campaign for means and merits tested legal aid. This is no easy task for an applicant who earns a ‘normal’ wage, has little savings, and has a modest amount of equity in the family home. The rules are mind-bogglingly complex (see Lord Chancellor’s Guidance Under s. 4 Legal Aid, Sentencing and Punishment of Offenders Act 2012).

Biological mothers and fathers who are married to the child’s mother at the time of birth are automatically vested with PR, by operation of law. All other parents have to ‘acquire’ PR, in one of the ways prescribed by law: see ss. 4 (biological father), 4ZA (second female parent), 4A (married step-parent), 8 (beneficiary of ‘live with order’) and 12 (2A) (beneficiary of ‘spend time with’ orders). Furthermore, biological mothers and married fathers cannot be divested of this status (see e.g.Re D (Withdrawal of Parental Responsibility) [2014] EWCA Civ.315), apart from in the case of adoption, or a parental order pursuant to s. 54 Human Fertilisation and Embryology Act, 2008, (however s. 14C (1)  does provide Special Guardians with ‘over-riding PR’, which may be exercised ‘to the exclusion’ of others). 

As our primary focus is the evolving dynamics of the modern-day family, it has to be said that the distinction between married and unmarried fathers (and married and unmarried step-parents) seems somewhat outmoded in the 21st century. Nevertheless, according to the ECHR, or so the argument goes, since marriage solidifies affiliation, there are strong moral imperatives for treating the married father differently from the unmarried father (Smallwood v UK App No 29779/96 (1998)). Albeit nearly a decade ago, in CW v SG [2013] EWHC 854 (Fam), Baker J stated that the ECHR decision was ‘firmly in line with the current legal and social context of unmarried fathers’. Other possible sociological justifications for the distinction are that it is a ‘stereotypical societal norm that cisgender, heterosexual marriage is a power for moral good’ (Moutrie, 2018); or alternatively, the traditional married couple signifies ‘a super-moral femininity, hyper-masculinity, hetero-normativity, and hetero-patriarchy’ (Lomax, 2018). Furthermore, we would argue that, the preferential distinction between biological mothers (who acquire PR automatically) and biological fathers (who only automatically acquire PR if married to the child’s mother at the time of birth) – essentially the prejudicial distinction between women and men (see e.g. B v UK [2000] 1 FLR 1) – as a matter of principle, should be utterly indefensible in these enlightened times, when the buzzwords are ‘inclusion’, ‘non-discrimination’, ‘anti-prejudices’ and the focus is, quite properly, on a deprecation of normative stereotypes. The suggestion that because women have an inviolable moral right in relation to their bodies, it is they who should have the ‘natural’ right to automatically acquire PR, is interesting from a philosophical perspective but hardly a convincing dialectic (Chiriluta, 2022). It could be argued that men also have an inviolable moral right in relation to their bodies and that the physical agency of carrying the child through pregnancy does not change the moral decision about whether or not to care for the child. That may be considered false logic in relation to the question of PR.

Focusing on the child, without down-grading Baroness Hale’s ‘deeper truth’ in any way, we would be unequivocal in elevating the relationship between biological father and his progeny, as being precisely the same, in nature and degree, as the ‘very special relationship between mother and child, a relationship which is different from any other’ (see Re G). Further, the relationship between committed and dedicated carers (for example non-biological step-fathers) and the children in their care, is one that should be given especial acknowledgement for funding purposes, if it comes to a dispute in care proceedings. The specialist foster carers in Re CV (A Child) (Placement Order) [2022] EWCA Civ 930 provide an excellent example on this point; but in order to give our views wider analytical context, we briefly clamber atop a high rampart in order to reconnoitre the nature and effect of PR.

PR is defined as “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” (s. 3(1) Children Act 1989). PR, therefore, is a matter of status, both for the parent and the child (see e.g. Re H (Minors) (Local Authority: Parental Rights) (No.3) [1991] Fam. 151); Re W (A Child) (Parental Responsibility Order: Inter-Relationship with Direct Contact) [2013] EWCA Civ 335). PR confers upon parents the ability to agree to or oppose important major steps, which impact upon their children, in domains such as education, health, religion and legal proceedings. This of course includes care proceedings, which brings the concomitant parental decisions about whether or not to contest for the permanent care of their children, or indeed whether or not to participate in the proceedings at all.

Almost all family lawyers will have come across perfectly responsible parents who do not have PR. This is not uncommon. Indeed it is consistent with the changing face of the modern family.  Consider step-parents, or other family members, or other ‘social and psychological parents’, who have, as a matter of fact, been caring for the children for a significant period of time, on a long-term basis, in a manner most beneficial to the children’s welfare. The law, to some extent, does recognise such parents because although PR cannot be ‘surrendered’ or ‘transferred’, it can be ‘delegated’ or ‘shared’, (s. 2 (9)). Also s. 3 (5) provides that ‘a person who (a) does not have PR for a particular child; but (b) has care of the child, may (subject to the provisions of this Act) do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare’. These parents have the right to make court applications, in an attempt to formally acquire PR after a period of three years (s. 10 (5) (b)), or earlier with leave of the court; however they may be forgiven for wishing to avoid confrontation with the biological parents, or to use the vernacular, to avoid ‘going to war’ with them. Sometimes, doing nothing is the most effective strategy, when considering the welfare of the child. This can quite literally be the difference between a noble and stable peace and a hostile war-footing. 

Dispute often presents itself as a precursor to the initiation of care proceedings – for example where an inadequate parent seeks to terminate a s. 20 arrangement with an ‘alternative parent’. In Re G Baroness Hale pointed out in her judgment, “……the fact that CG is the natural mother of these children in every sense of the term……. [raises] no presumption in her favour……[although] it is undoubtedly an important and significant factor in determining what is best for them now and in the future.”  However, the fact that ‘biology cannot trump welfare’ is not of much practical value if funding is not available for the ‘alternative parent’ to obtain expert legal representation. We do not shy away from emphasising the fact that the representation of parents by specialist lawyers is, in itself, an important safeguard for all children in care proceedings, whether or not the family is composed along traditional lines. It takes knowledge, experience and expertise to identify unlawful actions, challenge professional recommendations, forensically analyse evidence, properly scrutinise the legal process and make focused submissions (Broadhurst and Holt (2010)). It is submitted that the shibboleths of the ‘paramountcy principle’ and the ‘overriding objective’ and ‘access to justice’ are nothing more than vacuous rhetoric and ineffectual mantras if  ‘free legal aid’ in care proceedings is symbiotically linked only to the concepts of biology and PR. The fact that an alternative parent may be preferred by the local authority is of little comfort as situations can and often do change (see e.g. Re CV). It is therefore axiomatic that all parents are given proper opportunities to respond to presenting concerns in relation to children who have been in their care for a significant period of time, via the avenue of ‘free’ expert legal representation. In Re CV the specialist foster carers had been caring for a child with complex medical needs for two years and had been described as ‘front runners’ by the judge, prior to them becoming involved in a dispute with the local authority about money. Unfortunately, this was not the type of dispute where differences could be peremptorily laughed off (with or without the judge’s ‘magic wand’) with a view to a speedy rapprochement.

Specialist care lawyers will be familiar with ‘fixes’, which may facilitate access to ‘free legal aid’ and which may go some way to addressing the inequitable balance of power between professionals and non-biological parents, or parents without PR. One such example is a recital on the face of the care order which calls into service a combination of the provisions in ss. 2 (9) and 3 (5) to make it clear that the parent has the benefit of ‘delegated’ or ‘shared’ PR. Another is the making of a free-standing PR order for the benefit of a married step-parent, pursuant to s.4A if they are married to the biological parent. Courts are obliged to consider the making of an order for PR, independently of the making of an ICO (see e.g. Re (X (Children) (Care Proceedings: Parental Responsibility) [2000] Fam. 156); Re G (A Minor) (Parental Responsibility Order) [1994] 1 F.L.R. 504; Re CB (A Minor) (Parental Responsibility Order) [1993] 1 F.L.R. 920). Also, as a matter of law, there is nothing to prevent biological parents entering into a PR agreement, with a married step-parent pursuant to s. 4A (1) (a) – the local authority is not entitled to object to this (see Re H (A Child: Parental Responsibility [2002] EWCA Civ 542). In any event practitioners are advised that, where appropriate, a CAO (live with), for the benefit of a married step-parent, should always be contemporaneously supported by a free-standing PR order. That is because an ICO automatically discharges a CAO (live with) (s. 91 (2)) but it does not automatically discharge a free-standing PR order. A care order and a free-standing PR order can co-exist but a CAO and a care order cannot (Re X & Y (appeal against care order) [2018] EWFC B55 (23 August 2018)). Also, depending on the situation, it may be argued that a viable alternative to an ICO is a CAO (live with) and ISO (see the Public Law Working Group’s Best Practice Guidelines on Supervision Orders). A critique of these potential ‘fixes’ is outside of the scope of this article; thus we now turn to our suggestions for potential changes to the law, in the circumstances under discussion.

Firstly, the funding provision, which essentially limits ‘free legal aid’ to biological parents and those with PR, could simply be widened and amended. As a matter of principle, we see no reason why all parents who are currently, or have recently been, exercising de facto PR pursuant to ss 2 (9) and 3 (5) should not be automatically entitled to free legal aid, in circumstances where care proceedings have been issued. Currently they are obliged to rely on the capricious vagaries of a suitably worded recital, which may or may not be agreed by the parties or the court. It is difficult to see how this proposed change may be conceived as being even slightly controversial. As Ryder LJ pointed out in Re D (Withdrawal of Parental Responsibility) [2014] EWCA Civ.315, ‘[T]he concept of parental responsibility describes an adult’s responsibility to secure the welfare of their child which is to be exercised for the benefit of the child, not the adult….That the status relates to welfare not the mere existence of paternity is clear….’. This point, which we consider to be well-made, is underlined by the fact that biological fathers, who may not have even seen the child, let alone cared for them, are as a matter of fact, entitled to ‘free legal aid’, whether or not they have PR. However, if our suggestion is too radical (or expensive), the funding regulations could be amended so that all parents who are currently exercising de facto PR and have been continuously doing so, for at least 12 months (or for the whole life of the child), no later than three months prior to the institution of the proceedings, should be automatically entitled to free funding in the same way that biological parents and holders of PR are. There is statutory precedent for a 12-month period (that is how long local authority foster carers have to wait before signalling their intention to make an application for adoption in relation to a child in their care (s. 10 (5A)). There is also statutory precedent for a 36-month period (that is how long ‘alternative carers’ have to wait before they can make an application for a CAO without leave – s. 10 (5) (b)), but that seems too long. According to recent research, between 27 and 32 per cent of all care cases involve children aged under 12 months old (Doebler et al, 2022; Broadhurst et al, 2018). Our suggestion would at once remove the need to concoct elaborate recitals, or to engage in satellite litigation about the making of a free-standing order for PR, or to initiate delicate negotiations for parental responsibility agreements, in circumstances where parents are currently, or have recently been caring for children, as their primary carers.

Secondly, the law could be changed to automatically formally invest PR to parents who can rely on ss. 2 (9) and 3 (5), subject to the time periods outlined above. As already indicated, currently there is a requirement for there to either be a PR agreement or a court order for PR in place (or for the biological father to be named on the birth certificate). In making this suggestion, we make no distinction between married and unmarried fathers, or married and unmarried step-parents, or indeed other long-term, non-professional carers. In relation to biological fathers, one objection to the conferment of ‘automatic’ PR is that ‘maternity is never in dispute, but paternity always could be’ (Chiriluta, 2022). The problem with that type of ‘one-size-fits-all’ argument is that it only holds intellectual currency if the challenge to paternity is made before the child’s birth, or shortly thereafter. Further that particular objection falls away when the focus (as it is here) is turned to who, as a matter of fact, is mainly or exclusively parenting the child. In our view, that is a more important consideration than biological or familial affiliation (whatever that might look like). Incidentally, we would argue that if paternity has not been challenged within 12 months, it would be reasonable to render it unchallengeable.

It is also objectively feasible that in all circumstances where a parent has been joined to care proceedings, in exercise of judicial discretion, the court, in any event, could also be given the power to make a declaration which recommends ‘free legal aid’. This would cover situations such as where a long-term local authority foster carer, in competition with other respondents, seeks to care for a child on a permanent basis; or where a prospective special guardian has fallen prey to a change of care plan (see e.g. Re CV (A Child) (Placement Order) [2022] EWCA Civ 930).

Finally, although there were obviously policy reasons for the  s. 91 (2)  provision, the law could be changed so that s. 8 orders and care orders could co-exist in the same way that a special guardianship order can co-exist with, but overrides, the PR of others (s. 14C (1)); or in the same way that care orders can co-exist with special guardianship orders (Re F and G (Discharge of Special Guardianship Order) [2021] EWCA Civ 622) but be overridden by the local authority’s PR (s. 33 (3) (b) (i)). The s. 8 orders could in effect be suspended pending determination of the care proceedings.

It is further submitted that these changes would all, to a greater or lesser degree, be instrumental in seeking to avoid the linear judicial making processes that are so deprecated in Re B-S (Children) (Adoption order: Leave to Oppose) [2013] EWCA Civ 1146. Put another way, there is a difference, in particularity and specificity, in counsel for Parent A putting their own case, as a primary option, and counsel for Parent B putting Parent A’s case, as a viable but less preferable secondary option, which is what often happens in care proceedings, if Parent A cannot afford their own legal representation. Sometimes Parent A’s case is not put at all in this situation – see KS v Neath Port Talbot County Borough Council & Ors [2014] EWCA Civ 941 for an interesting example of this.

PR is an important matter of status, both for the child and his/her parent; indeed it is a morally desirable one, whether the parent is a biological one, step-parent or ‘social and psychological parent’. Thus we are not proposing that the concept be abolished, or be universally automatically conferrable. Also we are not suggesting that local authority foster carers should be joined to care proceedings in anything other than exceptional circumstances, as case law currently mandates. However, the fact that so-called automatic ‘free legal aid’, in care proceedings, is principally restricted to biological parents, or those with PR as a matter of law, is at best a highly illogical one in the 21st century. It can lead to many situations contrary to the benefit of children, especially those who are being cared for by long-standing ’emotional parents’. Although there are theoretical ‘fixes’ in these situations, they are by no means fool-proof. Indeed they may not be even practicable in the prevailing circumstances. We would therefore propose that in these very specialised instances consideration is given to changing the law, so as to either automatically confer PR on certain parents, whether they be biological fathers or non-biological parents; or alternatively to facilitate easier access to free public funding, for them.

21/11/22