There is to be a welcome amendment to the Victims and Prisoners Bill that proposes to automatically remove parental responsibility for a child from parent that is convicted of killing the other parent with whom they share that parental responsibility. An amendment to the Bill will introduce legislation to automatically suspend parental responsibility from such a parent.

The proposed amendment arose in part due the death of Jade Ward, whose partner, Russell Marsh killed her in 2021. He was convicted and sentenced for a minimum term of 25 years in prison. Under the current legislation which shall be changed with the proposed amendment, the father is entitled to information about the child due to his position as a parent with parental responsibility, and repeatedly contacted the Ward family for photographs and school reports. Jade's parents, Karen and Paul, have campaigned for the reforms now announced by the government.

There has been a growing concern about children whose parents have been involved in domestic abuse, in cases where one parent has been convicted of murder or voluntary manslaughter of the other parent and where the offender still has parental responsibility which asserts domination over all important elements and decisions in the child's life. This can include important decisions as to whether they can receive medical treatment, which schools they can attend, whether they can go on holiday or changing their name.

Parental Rights

A parent's parental rights are not automatically terminated solely because they have committed a crime. Currently, in the case of a serious conviction, the termination of parental rights requires a separate legal process and is based on the best interests of the child. Judges already have the ability in such cases to remove parental responsibility if the family of the deceased makes such a request, however it causes further emotional distress to bereaved families who need to engage with Court proceedings and bring the matter before a Judge. The amendment will remove the lengthy process that bereaved relatives have to go through to suspend or remove parental responsibility from the offender to enable them to make decisions on behalf of the child.

Daniel Theron, a partner, comments "the proposed amendment to the Victims and Prisoners Bill will present unique challenges for the legal

system. Child safety is the primary reason for the proposed amendment and by allowing the offending parent to retain parental responsibility for their children, as is the case at present, may place them at considerable risk of further harm or trauma. The current process means that families need to engage in proceedings before the Family Court to suspend or remove parental responsibility from a parent who has killed the other, and has been convicted of such. This is an emotionally distressing system that requires welcome reform to allow family members to overtake the responsibility without the interference of an offending parent. It will still be the case that measures will need to be put in place to care for the child after the death of a parent and the imprisonment of the offending parent, and we would suggest that advice is sought to ensure the family member or members caring for the child are able to obtain the appropriate orders from the Family Court to confer parental responsibility."

Parental Responsibility

Parental responsibility requires that a home is provided for the child and ensuring that the child is maintained and protected. Additional responsibilities are:

  • Disciplining the child;
  • Providing for the child's education and selecting the schools;
  • Agreeing to any medical treatment the child may require;
  • Naming the child and agreeing to any change of name;
  • Looking after any property owned by the child.

Parental responsibility is automatically bestowed on all mothers from birth and a mother's spouse usually also has parental responsibility if their name appears on the birth certificate. An unmarried father can obtain parental rights by jointly registering the birth of the child with the mother, getting a parental responsibility agreement with the mother or by obtaining a parental responsibility order from a Family Court.

In the case of same-sex couples, there are specific rules to comply with to ensure the intended parents are named on the birth certificate. We suggest you take legal advice in respect of this before conceiving to ensure your intentions are reflected legally.

Separated parents have parental responsibility even if the child or children do not live with them. The parent who the child lives with must include and consult with the other parent on all important decisions, such as moving abroad with the child, and agreement to such a decision should be made in writing. If there is no agreement the disagreeing parent can apply for a Prohibited Steps Order or Specific Issue Order and a Judge will make the decision based on the best interests of the child.

The proposed amendment underscores the importance of prioritising the welfare of the child in cases involving criminality where the child may be at risk, especially in cases of domestic abuse, particularly physical, and reinforces the principle that the child's welfare takes precedence over the parental rights of the convicted offender. It is therefore a welcome change to the law surrounding this issue that will mean bereaved families will not have to take the same legal steps to move on and look after the children whose parents have been killed by a parent sharing parental responsibility.

Daniel Theron advises on litigation in family law, employment, cross-border debt recovery and defamation. Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements and enjoys a high level of success in both debt recovery and employment law.

Daniel enjoys a reputation for being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients. He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.

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