Case No. ZE17P01593

In that case, a declaration of incompatibility in respect of ss (2) and (4) of the Act was sought. The Secretary of State intervened. Russell J concluded that Parliament had determined that “birth” mothers and “married” parents should be afforded an irrevocable legal status and that there were legitimate reasons underpinning the legislative distinction, which also resonated in other areas of Family law. These, Russell J concluded, established ‘weighty reasons’ justifying a difference in treatment, predicated on marital status. Accordingly, she determined that the statutory scheme was not incompatible with the Convention. Importantly, in her detailed factual analysis of the case, Russell J concluded that the inability of the applicant to secure a revocation of the respondent’s parental responsibility had not amounted to a failure on the part of the State in its positive obligation or duty to do what was reasonable in all the circumstances, to protect her and the children from a real and immediate risk of harm: “[128] The undoubted psychological harm, fear, anxiety, and emotional distress suffered was largely caused before these applications were made to the court. The residual trauma is undoubtedly severe enough to require treatment, but its primary cause was the behaviour of the FZ in the present case and not as a result of her inability to make an application to revoke parental responsibility as opposed to the CA 1989 orders granted which have virtually extinguished FZ's ability to exercise that parental responsibility. Such distress as that inability to apply for revocation has caused fail to meet the minimum level of severity threshold. The courts have held this to be a very high bar. I was referred to a number of cases where the domestic courts have concluded that the minimum level of severity had not been reached and/or Art 3 had not been violated, some of which made uneasy reading.[8] In AB v Secretary of State for Justice [2019] EWCA Civ 9 which concerned a minor, the suffering caused to a young offender who was placed on a "single lock'" regime whereby he could not leave his cell unless no other inmates were out of theirs for 55 days was found by the Court of Appeal that it did not violate Article 3, where a positive obligation was asserted.[129] I do not consider that the inability of MZ to apply for a revocation of FZ's parental responsibility amounts to failure on the part of the State in its positive obligation or duty to do "what is reasonable in all the circumstances to protect her (or the children) a real and immediate risk of harm": Re E (A Child) (Northern Ireland) [2009] AC 536 per Baroness Hale. The available orders which have been granted by this Court are in this context reasonable and afford protection.”7.As Russell J observed in MZ v FZ (supra), society and families have changed very considerably since the introduction of the Children Act 1989 (in October 1991). Cohabitation outside marriage has become far more commonplace. Marriage is available to same-sex couples, civil partnerships have been created and extended to heterosexual couples, carrying with them, the same privileges, and responsibilities of marriage. The Human Embryology and Fertilisation Act 1990 has now opened opportunities for biological parenthood to those for whom it would never otherwise been available. In this case, I found that F had raped M on more than one occasion. It is worth reflecting that even the concept of marital rape was not recognised until after the Children Act came into force. Each of these developments represents significant social change. Collectively, they reveal a very different social landscape to that facing the authors of the Children Act 1989. Prescient though the legislation has proved to be, I do not think it could have contemplated social change on the level we have seen. Against this backdrop, it is uncomfortable to realise, in 2022, that M may not make an application to divest F of his parental responsibility entirely due to the fact that she was married to him when the children were born. Moreover, by the time of the marriage, as I found in the judgment, M’s autonomy had already been significantly corroded in consequence of her treatment by F. Her parents believed and continue to believe that the marriage was driven by F’s desire to obtain leave to remain in the United Kingdom. However, whilst I find this anomaly of legal status to be profoundly uncomfortable, I do recognise that the contemplated protection for the applicant parent and children is to be found in the regime of Prohibited Steps Orders and Specific Issue Orders which the Children Act affords. Thus, whilst the legal status of a married father remains intact, it can be stripped of any potency to reach into the lives of the mother and children. His ability adversely to affect the welfare of either may be effectively prevented. This was the approach endorsed by Sir Andrew McFarlane P in