Cw v Sg
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice Baker |
| Judgment Date | 12 April 2013 |
| Neutral Citation | [2013] EWHC 854 (Fam) |
| Docket Number | Case No: BH11P00251 |
| Court | Family Division |
| Date | 12 April 2013 |
In the Matter of the Children Act 1989 and in the matter of Dw (a minor)
[2013] EWHC 854 (Fam)
The Honourable Mr Justice Baker
Case No: BH11P00251
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Lorie (instructed by Grenville J Walker) for the Applicant Mother
Saoirse Townshend (instructed by Galbraith Branley) for the Respondent Father
Hearing dates: 25 th and 26 th February 2013
The judge hereby gives leave for this judgment to be reported. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the parties and all children mentioned in the judgment must be strictly preserved.
This reserved judgment is delivered in respect of two applications concerning a boy, D, born 7 th August 2004, which I heard last term on circuit in Bournemouth. The first application is by D's mother for an order terminating his father's parental responsibility. The second is an application by the father for a specific issues order requiring the mother to supply annual reports on D's progress.
Background
The parties met and started a relationship in 200At that point, the mother already had five children aged between 7 and 1. She became pregnant again and gave birth to D on 7 th August 2004. The father's name was registered and appeared on D's birth certificate. As a result, he has parental responsibility pursuant to section 4 of the Children Act 1989 as amended.
The relationship between the parents was turbulent and they separated at the end of 2005. Following the separation, the mother's two elder daughters, A and C, then aged about 10 and 9, told her that they had been sexually abused by the father but afterwards retracted the allegations. The parties were reconciled and the father moved back into the family home. Subsequently, however, after the girls repeated their allegations, the police were informed, and interviewed the girls under the Achieving Best Evidence procedure. The father was arrested and charged with a series of sexual offences involving both girls.
In psychiatric reports prepared for the criminal proceedings, a consultant psychiatrist, Dr Obuaya, having examined the father and read his medical records, found that he had a history of drug and alcohol abuse and depression. He also noted that the medical records disclosed that the father had alleged he had been sexually abused by a member of his family. Dr Obuaya concluded, however, that the father did not suffer from any form of mental impairment.
The criminal case proceeded to a trial on ten counts — two counts of penetration, one of causing or inciting a child to engage in penetrative sexual activity; two of having sexual activity with a child; two of causing or inciting a child to engage in sexual activity; and three sexual assaults — but on the third day, just before the girls were due to give evidence, the father changed his plea to guilty. He subsequently received a custodial sentence of four years imprisonment. In passing sentence, the learned judge said inter alia:
"When children are harmed in this way within a family, a grave breach of trust is always involved. However, the circumstances relating to C involve particularly despicable exploitation by you of the situation in which you found yourself. At the time when you sexually assaulted C, her mother was coping with the demands of your new born son and suffering from depression. She was in no state to protect her daughters, a situation which obviously provided you with opportunities to be alone with C."
Manifestly, both A and C suffered very considerable emotional harm as a result of these assaults which took place over a period of twenty months. The mother too was deeply affected and came to blame herself for what happened. Subsequently, she met and married another, S, with whom she and the children still live.
In July 2010, the father wrote a letter to the mother's former solicitors from prison, referring to his parental rights in respect of D, and stating that he wished to have contact with D, although he added that he did not want any other involvement with the family. Thereafter, the mother and the family left the area in which they had been living and moved to a location unknown to the father.
The father was released on licence in June 2011. The terms of his licence, which expires on 24 th June 2013, included a restriction on any contact with D.
On 16 th July 2011, the mother filed an application for an order terminating the father's request for parental responsibility. Directions were given by District Judge Hurley on 29 th July 2011. At that hearing, the father stated that he was innocent of all charges in respect of A and C. The District Judge listed the final hearing in November 2011 and made further directions. Shortly before the hearing in November, the father filed an application for a specific issues order requiring the mother to provide annual updating reports on D's progress, including photographs, school reports and details of any medical problems and treatment. At the hearing on 24 th November, District Judge Weintroub decided that the matter should be transferred to the High Court because the application to terminate parental responsibility appeared to involve a new or unusual point of law. Thus the matter came before me in March 2012. I concluded that a further psychological report on the father was necessary to enable me to determine the application and I therefore gave permission to the father to instruct Mr Roy Shuttleworth, a consultant clinical psychologist, to prepare a report assessing inter alia whether the father posed any risk to D in the light of his criminal convictions and psychological profile.
Mr Shuttleworth duly filed his report dated 29 th May 2012 in which he concluded that the father presented a low risk of sexual abuse to D. I shall consider this assessment, and Mr Shuttleworth's oral evidence, later in this judgment. At this stage, I merely record that the father maintained throughout the assessment that he was innocent of all the charges involving A and C and that he only pleaded guilty in order to spare the girls the ordeal of giving evidence. When the matter came before me in July 2012, however, the father accepted through his counsel that the convictions 'are true convictions and he does not invite the court to reconsider those convictions'. I therefore listed the matter for a further hearing before me in February 2013.
For that hearing, I had the benefit not only of the statements from the parents and Mr Shuttleworth's report but also a report from the CAFCASS officer Alison Evans.
The Law
Section 4 of the Children Act 1989 as amended provides (insofar as relevant to these proceedings):
"(1) Where a child's father and mother were not married to each other at the time of his birth, the father shall acquire parental responsibility for the child if
(a) he becomes registered as the child's father under any of the enactments specified in subsection (1A);
(b) he and the child's mother make an agreement (a 'parental responsibility agreement') providing for him to have parental responsibility for the child or
(c) the court, on his application, orders that he shall have parental responsibility for the child.
(1A) the enactments referred to in subsection (1)(a) are
(a) paragraphs (a) (b) and (c) of section 10 (1) and of section 10A (1) of the Births and Deaths Registration Act 1953 ….
…
(2A) A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.
(3) The court may make an order under subsection (2A) on the application
(a) of any person who has parental responsibility for the child… "
Section 4 as amended includes the provisions inserted by Parliament via the Adoption and Children Act 2002 which were designed to extend parental responsibility to an unmarried father if his name is registered on the birth certificate at the registration of the child's birth. In practice, an unmarried father cannot register the birth without the mother's consent. Thus, the amended provision can be seen as an extension and simplification of the existing provisions which enable unmarried fathers to acquire parental responsibility under a parental responsibility agreement entered into with the mother. What is particularly notable, however, is that Parliament has chosen to leave in place the provision, now contained in section 4 (2A), for an unmarried father who has acquired parental responsibility in any of the circumstances in section 4 (1) to be deprived of that responsibility by order of the court.
It is very unusual for parental responsibility to be terminated by order of the court. In fact, the extensive researches of counsel and the court have only identified one reported case concerning such an application, namely a decision at first instance of Singer J in Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048.
That case concerned a baby whose unmarried parents had signed a parental responsibility agreement. At the age of 9 weeks, the baby was admitted to hospital with a number of serious injuries and was subsequently taken into care and placed with foster parents. The father was charged with offences in respect of the injuries and sentenced to a term of imprisonment. The mother made an application for an order to terminate the father's parental responsibility under section 4 of the Children Act. The application was allowed by Singer J who in the course of his judgment said (at page...
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