H v A
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald,The Honourable Mr Justice MacDonald |
| Judgment Date | 22 June 2015 |
| Neutral Citation | [2015] EWFC 58 |
| Docket Number | Case No: MA14P01452 |
| Court | Family Court |
| Date | 22 June 2015 |
[2015] EWFC 58 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Liverpool Civil Family Court, Hearing Centre,
35 Vernon Street, Liverpool L2 2BX
The Honourable Mr Justice MacDonald
Case No: MA14P01452
Ms McHugh Counsel for the Applicant Mother
Mr Gilmore Counsel for the Respondent Father
(The names of instructing solicitors have been omitted to protect the anonymity of the parties).
Hearing dates: 16 th June 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
I have before me three applications in relation to L, now aged 9, LF, now aged 7 and E, now aged 5.
The parents of the children are H, the applicant mother (hereafter 'the mother') in this case, and A, the respondent father (hereafter 'the father'). The father holds parental responsibility for all three children in the circumstances described in more detail below.
The three applications comprise an application dated 5 September 2014 to revoke an order for indirect contact between the father and the children made on 11 March 2013, an application dated 5 September 2014 to revoke the father's parental responsibility for all three children and an application dated 18 May 2015 for an order pursuant to the Children Act 1989 s 91(14).
The application to revoke the parental responsibility of the father is no longer pursued by the mother.
In relation to LF and E, the father holds parental responsibility by operation of the Children Act 1989 s 2(1) in circumstances where he was married to the mother at the time of each child's birth.
In relation to L both parties appeared initially to be under the misapprehension that the father had acquired parental responsibility as an unmarried father and hence, they agreed between them, the Court had jurisdiction to revoke his parental responsibility pursuant to the provisions of s 4(2A) of the Children Act 1989. The mother sought revocation of the father's parental responsibility for L. The father opposed revocation.
However, it is clear on the face of the papers, and now accepted by both parties, that the father holds parental responsibility for L pursuant to the Children Act 1989 s 2(1) by reason of his marriage to the mother subsequent to Ls' birth (s 2(3) of the Children Act 1989 requiring s 2(1) of the Children Act 1989 to be read by reference to the Family Law Reform Act 1987 ss 1(2) and 1(3), with the result that s 2(1) of the 1989 Act encompasses children legitimated by the subsequent marriage of their mother and father).
The Children Act 1989 contains no provision that would give the court jurisdiction to revoke the father's parental responsibility for L, LF or E in circumstances were that parental responsibility is conferred upon him in all cases by the operation of the s 2(1) of the Children Act 1989. In relation to L specifically (and again by reference to the Family Law Reform Act 1987 ss 1(2) and 1(3) read with the Legitimacy Act 1976 ss 2 and 10 and also to the explicit terms of s 4(2A) of the 1989 Act) the Children Act 1989 s 4(2A) cannot apply in circumstances where parental responsibility has been conferred as the result of a child being legitimated by the subsequent marriage of their mother and father.
Initially, Ms McHugh sought, in a bold submission, to persuade the Court that it should nonetheless read into the Children Act 1989 a jurisdiction to revoke parental responsibility conferred by s 2(1) of the Act on the grounds that the distinction drawn by the Act between married and unmarried fathers with respect to the revocation of parental responsibility is unjustified, unfair (in the sense that the children of married parents enjoy, as Ms McHugh put it, a lesser form of protection in circumstances where parental responsibility cannot be revoked in an appropriate case) and antithetic to the best interests of children generally and these children in particular.
Following my pressing Ms McHugh further regarding her primary submission she felt compelled, sensibly, to concede that, in circumstances where the intention of Parliament to draw a distinction between married and unmarried father's with respect to the revocation of parental responsibility is clear on the face of the 1989 Act, and in circumstances where the European Court of Human Rights held in Smallwood v UK (1999) 27 EHRR 155 that such a distinction does not constitute a violation of Art 14 of the Convention taken in conjunction with Art 8 of the Convention, that the Court could not accede to her primary submission.
On the remaining applications the parties have reached a level of agreement, which agreement is incorporated into the terms of the order set out below.
The sole remaining issue between the parties, which I am now asked to determine, is whether the limitations which the parties have agreed should be imposed on the exercise of the father's parental responsibility should also include a prohibition on the father receiving an annual report from the children's school regarding their academic progress, limited to what has been described as the "raw data" that comprises the children's grades. The mother contends that the restrictions on the father's parental responsibility should include such a prohibition. The father invites the Court not to prohibit the reception by him of such reports from the school in the exercise of his parental responsibility.
Before determining that issue it is appropriate that I set out the background to these proceedings.
BACKGROUND
The mother alleges that she was the victim of extensive domestic violence at the hands of the father during the course of their relationship. The mother details in her statements before the Court a large number of incidents from November 2005 to July 2012, many of which she contends were witnessed by the children with some involving violence towards the children.
The Father vehemently denies these allegations and in his statement dismisses them out of hand without further explanation. The allegations of domestic violence in this case have not been the subject of findings and I am not invited to make such findings for the purposes of determining the issue before me.
That said, it is important to note that on 13 August 2013 the father was convicted of two offences of battery against the mother committed on 1 June 2012. Following these offences the mother was granted a non-molestation injunction on 14 June 2012. On 9 July 2012 the father was convicted at Bolton Magistrates of a breach of that non-molestation order committed on 30 June 2012.
On 24 July 2012 at approximately 7am the father set fire to the passenger seat of his own car and drove it into the family home whilst the mother and the children were inside. Following the impact the father got out of his car and further fanned the car fire by pouring accelerant on it. The house then caught fire. The mother recollects the children's fish tank shattering and the pictures on the walls and the television melting. The mother and the children were fortunate to escape the burning family home without sustaining injury.
The father maintains that his actions in driving a burning car into the family home constituted at attempt to take his own life and that the incident had its genesis in alleged mental health issues. The incident recounted above was however caught on a CCTV camera. That camera recorded that the father stood watching the burning car and the burning house, laughing and saying " I couldn't have wished for it to go any better, if I'm not having the house neither is she". There is no evidence before this court regarding the father's mental health and nor has the father sought to introduce any.
The father was arrested following the incident and was charged with arson with intent to endanger life and with breach of the non-molestation order. He was convicted and sentenced to 8 years in custody with a three year licence extension pursuant to the Criminal Justice Act 2003 s 227 on the grounds of significant risk to members of the public of serious harm occasioned by the commission of further offences. The father was made the subject of a restraining order until further order of the court. The father also received a 2 year concurrent sentence of imprisonment for the breach of the non-molestation order. The mother and the children had to be re-housed on account of the family home having been rendered uninhabitable by reason of the father's actions.
Following his imprisonment the father was again arrested, this time on suspicion of soliciting the murder of the mother and on suspicion of encouraging or assisting in the commission of an offence, believing one would be committed, namely assault, theft, criminal damage and arson. The allegations against the father centred on claims that he had sought to pay other inmates to arrange for the murder the mother by setting fire to the house.
Following a trial the father was acquitted of three counts of soliciting murder but convicted of the charges of encouraging or assisting in the commission of an offence believing one would be committed.
The father was sentenced for these offences on 6...
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