‘“a prohibited steps order” means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court; “a specific issue order” means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.’
‘… when considered in the context of [the father’s] continuous harassment, threats, and abuse over a prolonged period of time, it is evidence of dangerous, obsessive behaviour which led [the mother] and the children to feel like prisoners in their own home. It must be observed that it is almost impossible for those who have not experienced it to understand the powerlessness, lack of control over one’s own life, fear and trauma induced in victims of stalking. [The mother] has suffered from PTSD (and is prescribed medication for anxiety) which is directly attributable to [the father’s] abusive behaviour and harassment.’
‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
‘The enjoyment of the rights and freedoms set forth in the European Convention on Human Rights and the Human Rights Act shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’
“Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents….”
‘33. With those considerations in mind, I turn to the issue of justification. It isnow well-established in a series of cases at this level, beginning with Huang vSecretary of State for the Home Department[2007] UKHL 11 ,[2007] 2 AC 167 ,and continuing with R (Aguilar Quila) v Secretary of State for the Home Department(AIRE Centre intervening)[2011] UKSC 45 ,[2012] 1 AC 621 , and Bank Mellat vHM Treasury (No 2)[2013] UKSC 39 ,[2014] AC 700 , that the test for justificationis fourfold: (i) does the measure have an legitimate aim sufficient to justify thelimitation of a fundamental right; (ii) is the measure rationally connected to that aim;(iii) could a less intrusive measure have been used; and (iv) bearing in mind theseverity of the consequences, the importance of the aim and the extent to which themeasure will contribute to that aim, has a fair balance been struck between the rightsof the individual and the interests of the community?’
‘4.42 For a number of reasons we are not attracted to this kind of solution. In the first place it would affect many more married than unmarried couples and would thus go far beyond the scope of this Report. Moreover it would involve a fundamental change in legal philosophy for which we have not found any great support or real justification. Our law (in common with that of other common law countries) is firmly based on the principle that the family is a unit in which there exists a broad parental authority. Whilst we are aware that there will be occasions on which even married parents abuse that authority, we believe that the law already follows the right course in relation to them by providing machinery for intervention when necessary, rather than by imposing rigid and artificial limitations when not strictly necessary. A further objection to this type of solution is, we think, that it would raise very considerable problems in defining the parental rights which might be restricted or the circumstances in which they would not be exercisable. We have already pointed out that it is not easy, as the law stands at present, to make an exhaustive catalogue of "parental rights". In view of this fact, we do not think that it would, in the absence of a comprehensive codification of the law on this topic, be possible to define satisfactorily those rights to which parents would or would not be entitled or the circumstances in which all or any parental rights could not be exercised.’
‘3.3 There is one respect in which the position of a father who has been granted all the parental rights and duties by means of an order under clause 4 of the draft Bill will differ from that of a married father, in that the court will have power to revoke the order. This was provided for in our earlier Report and, in the present state of the law relating to family responsibilities, we consider that it should be retained. We recognise that, owing to the widely varying extent to which unmarried fathers in fact assume responsibility towards their children (and indeed towards the mothers who bring those children up), it would not be in the best interests of the children if fathers were automatically to enjoy full parental status. Where the parents are in fact living together and co-operating in bringing up their children, we hope that such orders will frequently be applied for and granted. However, unless the courts are able to remove parental powers where it subsequently proves not to be in the child's best interests for the father to have them, the courts may be reluctant to make such orders at all. A court will necessarily have to have regard to the extent to which it will be able to protect the child's interests should the need arise in the future and under the present law the powers of the divorce courts in relation to married couples are somewhat more extensive than those under the Guardianship of Minors Acts. The time may come when the general framework of the law relating to the responsibilities of parents, not only towards their children but also towards one another, is such that this can be reconsidered; but for the time being we consider that the power to revoke these orders, in what we hope will be exceptional circumstances, should be available.’
‘2.11 Allied to this is the principle that parents should not lose their parental responsibility even though its exercise may have to be modified or curtailed in certain respects, for example if it is necessary to determine where a child will live after his parents separate. Obviously, a court order to that effect will put many matters outside the control of the parent who does not have the child with him. However, parents should not be regarded as losing their position, and their ability to take decisions about their children, simply because they are separated or in dispute with one another about a particular matter. Hence they should only be prevented from acting in ways which would be incompatible with an order made about the child's upbringing. … These principles form part of our general aim of "lowering the stakes" in cases of parental separation and divorce, and emphasising the continued responsibility of both parents, to which we shall return. However, they are equally important where children are committed to local authority care. The crucial effect of a care order is to confer parental responsibilities upon the authority and there will be detailed regulations about how these are to be exercised. But the parents remain the parents and "it will continue to be important in many cases to involve the parents in the child's care". Clearly, the order will leave little scope for them to carry out their responsibilities, save to a limited extent while the child is with them, because the local authority will be in control of so much of the child's life. But the parents should not be deprived of their very parenthood unless and until the child is adopted or freed for adoption.’
‘158 Nevertheless, it is appropriate that the approach which this court has adopted since Humphreys[2012] 1 WLR 1545 should be modified in order to reflect the nuanced nature of the judgment which is required, following the jurisprudence of the European court. In the light of that jurisprudence as it currently stands, it remains the position that a low intensity of review is generally appropriate, other things being equal, in cases concerned with judgments of social and economic policy in the field of welfare benefits and pensions, so that the judgment of the executive or legislature will generally be respected unless it is manifestly without reasonable foundation. Nevertheless, the intensity of the court’s scrutiny can be influenced by a wide range of factors, depending on the circumstances of the particular case, as indeed it would be if the court were applying the domestic test of reasonableness rather than the Convention test of proportionality. In particular, very weighty reasons will usually have to be shown, and the intensity of review will usually be correspondingly high, if a difference in treatment on a “suspect” ground is to be justified. Those grounds, as currently recognised, are discussed in paras 101—113 above; but, as I have explained, they may develop over time as the approach of the European court evolves. But other factors can sometimes lower the intensity of review even where a suspect ground is in issue, as cases such as Schalk, Eweida and Tomþs illustrate, besides the cases concerned with “transitional measures”, such as Stec, Runkee and British Gurkha. Equally, even where there is no “suspect” ground, there may be factors which call for a stricter standard of review than might otherwise be necessary, such as the impact of a measure on the best interests of children. 159 It is therefore important to avoid a mechanical approach to these matters, based simply on the categorisation of the ground of the difference in treatment. A more flexible approach will give appropriate respect to the assessment of democratically accountable institutions, but will also take appropriate account of such other factors as may be relevant.’
‘Article 14 of the Convention provides that: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. As is now well known, this raises four questions, although these are not rigidly compartmentalised: (1) Do the circumstances fall within the ambit of one or more of the Convention rights? (2) Has there been a difference of treatment between two persons who are in an analogous situation? (3) Is that difference of treatment on the ground of one of the characteristics listed or other status? (4) Is there an objective justification for that difference in treatment?’
‘(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.’
‘20. The provisions within Section 91A are transformative. The section provides a powerful tool with which judges can protect both children and the parent with whom they live, from corrosive, demoralising and controlling applications which have an insidious impact on their general welfare and wellbeing and can cause real emotional harm. This amended provision strikes me as properly recognising the very significant toll protracted litigation can take on children and individuals who may already have become vulnerable, for a variety of reasons. It also dovetails with our enhanced understanding of the nature of controlling and coercive behaviour. When all other avenues are lost, too often the court process becomes the only weapon available. Lawyers and judges must be assiduous to identify when this occurs, in order to ensure that the court is not manipulated into becoming a source of harm but a guarantee of protection.’
‘The Commission recalls that under English law a father automatically acquires parental responsibility for his children only if he is married to their mother. In contrast, the Commission notes that an unmarried father must apply for parental responsibility for his children born out of wedlock, which may be granted to him by court order or by agreement with the mother. The Commission recalls that the relationship between natural fathers and their children varies from ignorance and indifference to a close stable relationship indistinguishable from the conventional family based unit (see the above-mentioned McMichael v UK, para. 98). For this reason the Court has held that there exists an objective and reasonable justification for the difference in treatment between married and unmarried fathers with regard to the automatic acquisition of parental rights (ibid.).’
‘[8] The question of the differential treatment of married and unmarried fathers by the statutory scheme is not before this court for consideration. Neither mothers nor married fathers can have their parental responsibility removed. That was the issue in Smallwood v United Kingdom (Application No 29779/96)(1999) 27 EHRR 155 , an admissibility decision of the Commission in which it was held that the difference in treatment between mothers, married and unmarried fathers in the context of the jurisdiction of the court to make an order which removes an unmarried father’s parental responsibility is not a violation ofArt 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (European Convention) taken in conjunction with Art 14. On that basis the father in this case was refused permission to appeal on the question of whether the differential treatment was proportionate and whether s 4(2A) of the CA 1989 was incompatible with the rights set out in Arts 8 and 14 of the European Convention.’
‘115 In summary, therefore, the court’s approach to justification generally is a matter of some complexity, as a number of factors affecting the width of the margin of appreciation can arise from “the circumstances, the subject matter and its background”. Notwithstanding that complexity, some general points can be identified. (1) One is that the court distinguishes between differences of treatment on certain grounds, discussed in paras 100—113 above, which for the reasons explained are regarded as especially serious and therefore call, in principle, for a strict test of justification (or, in the case of differences in treatment on the ground of race or ethnic origin, have been said to be incapable of justification), and differences of treatment on other grounds, which are in principle the subject of less intensive review. (2) Another, repeated in many of the judgments already cited, sometimes alongside a statement that “very weighty reasons” must be shown, is that a wide margin is usually allowed to the state when it comes to general measures of economic or social strategy. That was said, for example, in Ponomaryov, para 52, in relation to state provision of education; in Schalk, para 97, in relation to the legal recognition of same-sex relationships; in Biao v Denmark, para 93, in relation to the grant of residence permits; in Guberina, para 73, in relation to taxation; in Bah v United Kingdom, para 37, in relation to the provision of social housing; in Stummer v Austria, para 89, in relation to the provision of a state retirement pension; and in Yigøit v Turkey, para 70, in relation to a widow’s pension. In some of these cases, the width of the margin of appreciation available in principle was rejected in the statement that the court “will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’”: see Bah, para 37, and Stummer, para 89. (3) A third is that the width of the margin of appreciation can be affected to a considerable extent by the existence, or absence, of common standards among the contracting states: see Petrovic and Markin. (4) A fourth, linked to the third, is that a wide margin of appreciation is in principle available, even where there is differential treatment based on one of the so-called suspect grounds, where the state is taking steps to eliminate historical inequality over a transitional period. Similarly, in areas of evolving rights, where there is no established consensus, a wide margin has been allowed in the timing of legislative changes: see Inze v Austria, Schalk and Stummer v Austria. (5) Finally, there may be a wide variety of other factors which bear on the width of the margin of appreciation in particular circumstances. The point is illustrated by such cases as MS v Germany, Ponomaryov and Eweida v United Kingdom.’
‘The approach of domestic courts 143 The concept of the margin of appreciation is specific to the European court. Nevertheless, domestic courts have generally endeavoured to apply an analogous approach to that of the European court. They have done so for two reasons. The first was explained by Baroness Hale in R (Countryside Alliance) v Attorney General[2008] AC 719 , para 126: “But when we can reasonably predict that Strasbourg would regard the matter as within the margin of appreciation left to the member states, it seems to me that this House should not attempt to second guess the conclusion which Parliament has reached. I do not think that this has to do with the subject matter of the issue, whether it be moral, social economic or libertarian; it has to do with keeping pace with the Strasbourg jurisprudence as it develops over time, neither more nor less: see R (Ullah) v Special Adjudicator[2004] 2AC 323 , para 20.” Accordingly, where the European court would allow a wide margin of appreciation to the legislature’s policy choice, the domestic courts allow a correspondingly wide margin or “discretionary area of judgment” (R v Director of Public Prosecutions, Ex p Kebilene[2000] 2 AC 326 , 380). 144 The second reason is that domestic courts have to respect the separation of powers between the judiciary and the elected branches of government. They therefore have to accord appropriate respect to the choices made in the field of social and economic policy by the Government and Parliament, while at the same time providing a safeguard against unjustifiable discrimination. As Lord Neuberger of Abbotsbury observed in R (RJM) v Secretary of State for Work and Pensions[2009] AC 311 , para 57, “there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable”.’
‘58 The second question is whether there is a legitimate aim for the interference. There clearly is. It consists of the protection of the rights of others, including any children who are born to a transgender person, and the maintenance of a clear and coherent scheme of registration of births. It is important in this context to bear in mind that this is a question to be addressed at a general level. It does not turn on the facts of this or any other particular case. The question is not whether it would be in the best interests of YY [the child] to have the person who gave birth to him described as his mother on the long-form birth certificate. The question is whether the rights of children generally include the right to know who gave birth to them and what that person’s status was.’
‘The requirements of proportionality in the human rights context are now well established: see eg the decision of the Supreme Court in Bank Mellat v HM Treasury (No 2)[2014] AC 700 , para 20 (Lord Sumption JSC) and para 74 (Lord Reed JSC). There are four questions to be asked: (i) Is there a sufficiently important objective which the measure pursues? (ii) Is there a rational connection between the means chosen and that objective? (iii) Are there less intrusive means available? (iv) Is there a fair balance struck between the rights of the individual and the general interests of the community?’
‘82 The second foundation is that Parliament enjoys a democratic legitimacy in our society which the courts do not. In particular, that legitimises its interventions in areas of difficult or controversial social policy. That is not to say that the courts should abdicate the function required by Parliament itself to protect the rights which are conferred by the HRA. The courts have their proper role to play in the careful scheme of the HRA, as Lord Bingham emphasised in A v Secretary of State for the Home Department[2004] UKHL 56 , at para 42. In appropriate cases that can include making a declaration of incompatibility under section 4 in respect of primary legislation where an incompatibility between domestic legislation and Convention rights has been established and the interpretative tool provided by section 3 does not provide a solution. Democratic legitimacy provides another basis for concluding that the courts should be slow to occupy the margin of judgment more appropriately within the preserve of Parliament.’
‘If a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference with article 8 rights in all or almost all cases, the legislation itself will not be incompatible with Convention rights . . .’
‘Moreover it would involve a fundamental change in legal philosophy for which we have not found any great support or real justification. Our law (in common with that of other common law countries) is firmly based on the principle that the family is a unit in which there exists a broad parental authority.’