Bethany Brown, Senior Lecturer at NLS https://www.ntu.ac.uk/staff-profiles/law/bethany-brown
Towards the end of May 2024, the Victims and Prisoners Act (“VPA) was passed. The aspiration of the Act is to ‘improve the support and guidance offered to victims of crime and major incidents, and those suffering bereavement, including through the appointment of specialist advocates.’ Although the Act has been passed, not all sections are in force, nor do they have commencement dates. Amongst them is section 18. Section 18, titled 'Restricting parental responsibility where one parent kills the other’, will have a significant impact once implemented. It introduces section 10A to the Children Act 1989, and imposes a duty on the Crown to make a prohibited steps order (“PSO”) when:
1) An offender has parental responsibility; and
2) They are convicted of the murder or manslaughter of the other parent.
In ordinary circumstances, a PSO prohibits a particular exercise of parental responsibility (the rights and responsibilities vested in designated adults to enable them to care for a child and make decisions on their behalf). For example, the family court may grant a PSO preventing a child from being taken abroad or initiated into a new religion. Section 18 however, completely suspends the exercise of parental responsibility by the offender in question, subject to a murder or manslaughter conviction of the other parent.
This was introduced after a campaign by the family of Jade Ward. Jade Ward was a 27-year-old female who was stabbed and strangled by her estranged husband Russell Marsh in 2021. Marsh was sentenced to life in prison with a minimum of 25 years, but per section 2(1) Children Act 1989 Marsh retained Parental Responsibility for the couple’s four children. Relatives of Jade, who were caring for the children, reported that Marsh continued, even after his conviction, trying to exert controlling behaviour over them and the children’s upbringing. This included, for example, requesting school reports for the children and trying to stipulate how they should be cared for.
The Ministry of Justice argued that this legislation “will better protect children by preventing killers from having any say over key elements of their life… It will also mean the bereaved will no longer have to go through the current process of applying to restrict parental responsibility through the family court, reducing the burden on them at a challenging time.”
It is important to note that the Act does not remove parental responsibility but restricts its exercise. Furthermore, the Court has discretion to refrain from making any order in a case of manslaughter, where it would not be in the interests of justice to do so. The focus is primarily on situations of domestic abuse, as opposed to accidents arising from irresponsible behaviour.
Whilst the intention behind the reform is commendable, there are some problematic aspects to the anticipated change.
The most convoluted issue is the new duty to impose the PSO is placed on the Crown Court as part of the sentencing process, rather than on a family court. When a family court is determining a question relating to the upbringing of a child, that child’s welfare is the paramount consideration (Children Act 1989 s1(1)). This reflects not only domestic law, but international commitments in respect of the United Nations Convention on the Rights of the Child.
In contrast, criminal courts do not have the time or capacity to put what is in a child’s best interests at the forefront of their minds when making sentencing determinations. It is also not clear how this new statutory duty will interact with the overarching obligation to treat the child’s best interest as paramount.
Whilst it may be a difficult pill to swallow, restricting parental responsibility in these circumstances may not always be in a child’s best interests. There is no opportunity for a child, who will have lost both parents, to be able to articulate their wishes and feelings. Family courts are very different in nature, and operate in a wholly different manner, giving more focus to individual circumstances and the individual child than a criminal court would be equipped to do.
A further issue arising is that the PSO being ordered during sentencing. This seems problematic for two reasons. Firstly, the primary purpose of the sentencing exercise is to punish. In contrast, the intention behind restricting parental responsibility (according to the former Lord Chancellor and Justice Secretary, Alex Chalk KC) is to protect victims; namely the children and close family members of the deceased. Imposing the PSO during sentencing gives the impression that the aim is to punish the offender, rather than safeguard third parties.
Secondly, the journey to sentencing is not quick, particularly where an offender pleads not guilty, and the matter is listed for a trial. Between charge and sentencing, the offender will be able to exercise parental responsibility, leaving the family members and children vulnerable to controlling behaviours. Bereaved relatives will still have to go through the current process of applying to gain parental responsibility, given that there is no automatic transfer by process of law. If a child loses a parent, legislation does not by default allocate parental responsibility to an aunt, uncle or grandparent. There are good reasons for this, to protect both children and adults. However, it does mean that families would in any event need to go to court. Even after the new law is introduced, relatives will still also be required to ask a judge to restrict the offender’s parental responsibility whilst the perpetrator is awaiting trial.
Overall, whilst the intention behind the reform is commendable, it seems the Act is already falling short of protecting children and families. How then should the law deal with this type of situation? Focus needs to be on granting bereaved relatives an elevated level of parental responsibility imminently rather than punishing an offender at sentencing.
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