Duncan Lewis, Legal News Solicitors, The Use of Prohibited Steps Orders to Limit Parental Responsibility
Prohibited Steps Orders (PSOs) are issued by the Court to restrict a parent's ability to make certain decisions for their child, ensuring they go only as far as necessary for the child's welfare.
What is Parental Responsibility?
Parental Responsibility (PR) is defined in the Children Act 1989 as "all the rights, duties, powers, responsibilities, and authority, which by law a parent of a child has in relation to the child." PR encompasses all aspects of parenting necessary for making decisions about a child's upbringing. Mothers automatically have PR, as do fathers who are married to or in a civil partnership with the mother. Unmarried fathers can acquire PR by being named on the birth certificate, through a court order, or via a written agreement with the mother.
What is a Prohibited Steps Order?
A PSO, falling under Section 8 of the Children Act 1989, prevents a person from exercising specific parts of their PR. The Court's main consideration when issuing a PSO is the welfare of the child. PSOs are often used to prevent the removal of a child from England and Wales but can apply to any aspect of PR. Although PSOs can carry a power of arrest, they are rarely made due to their interference with the parent's and the child's Article 8 right to a Private Family Life.
The Law Surrounding PSOs and PR
The High Court case Re B and C (Children) [2018] 4WLR 19 outlines factors for considering PSOs to limit PR. Key considerations include:
- PR is for the child's benefit, not the parent's.
- The child's welfare is the paramount concern.
- The welfare checklist, though not mandatory, can aid the Court.
- The 'No Order Principle' applies, meaning an order is only made if it benefits the child.
- Relevant factors include the father's commitment to the child, their attachment, and the reason for the order request.
- A child typically benefits from relationships with both parents.
- PR signifies a significant status that encourages addressing post-separation contact challenges.
- Any interference with the Right to a Private and Family Life must be justified.
In the case Re B and C, the Court came to the unanimous decision that PSOs limiting the father's PR were necessary and proportionate to ensure the mother's and child's safety and well-being, prioritising the child's Article 8 right over the father's. These principles were emphasised in LA v Y and Others [2020] EWHC 3884 (Fam), which stressed the need for caution when issuing such orders.
The Court is often reluctant to restrict a father's PR, viewing such orders as draconian. Balancing the father's right to a Private and Family Life with the mother's and child's well-being is crucial. The Court aims to safeguard the father's rights while ensuring any orders are necessary and proportionate. These cases raise broader questions about state involvement in family life, especially in instances of domestic violence, and the extent of a father's involvement while ensuring the safety and well-being of the mother and child.
Duncan Lewis Solicitors Family and Child Care team regularly instruct and advise on the implementation of Prohibited Steps Orders. Our Child Care team advise that clients who are seeking help with child care matters – or who are in dispute over childcare and may wish to apply for a PSO – to get in touch as soon as possible before the situation escalates, or if a child is at risk of being taken out of the country unlawfully by a parent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.