F v M
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 16 January 2023 |
| Neutral Citation | [2023] EWFC 5 |
| Court | Family Court |
| Docket Number | Case No: ZE17P01593 |
[2023] EWFC 5
THE HONOURABLE Mr Justice Hayden
Case No: ZE17P01593
IN THE FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
( Julien Foster instructed by Dawson Cornwell LLP) for the Applicant
( Matthew Stott instructed by the Duncan Lewis Solicitors) for the Respondent
Hearing dates: 5 th and 6 th December 2022
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.
THE HONOURABLE Mr Justice Hayden
On the 15 th January 2021, I handed down judgment in F v M [2021] EWFC 4. The case presented very serious allegations of coercive and controlling behaviour by the father (F), in the context of two relationships. The first of the relationships analysed in that judgment concerned the mother (M) of the two children with whom I am concerned at this hearing. They are Y, now aged 8, and S, now aged 5. The litigation history, as I recorded in the earlier judgment, had been extraordinarily protracted. The final fact-finding hearing, which I concluded in January 2021, had been adjourned 6 times. The originating application was made by F in October 2017. In August 2021, there had been a successful appeal from a case management decision by a Circuit Judge, and the case was then allocated to me. Peter Jackson LJ, delivering the judgment of the Court of Appeal, referred to the “extremely difficult procedural history”.
My judgment sets out very serious findings, at the highest end of the index of gravity, within the sphere of coercive and controlling behaviour. The findings have not been appealed. My approach, in the judgment, to this particularly insidious type of abuse, was approved by the Court of Appeal in H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) (Rev 2) [2021] EWCA Civ 448.
On the 24 th March 2021, F issued an application for a Child Arrangements Order for contact with both children (i.e., barely 8 weeks after the judgment). It should be noted that he has never met S (the youngest child). There was also an application for a Specific Issue Order, seeking a change of surname for S. The latter application, in particular, and in the context of my findings, reveals, at best, an arrogant lack of empathy for the effect that the protracted proceedings had already had on M and the elder child, Y. More than that, however, it reveals how F has used the Court proceedings as a different facet of controlling behaviour.
On the 21 st May 2021, M's legal team made applications for permission to disclose the judgment and the case papers to the police. Additionally, the application sought, in the event that no order for contact was made, to remove F's Parental Responsibility. It would appear to require to be stated that disclosure of the judgment to the police does not require a Court order. Unless the court specifically prevents it, the police and CPS are entitled to a copy of a judgment pursuant to Family Procedure Rules r.12.73. The information within that judgment must only be used for the purposes of child protection and/or investigation of crime. M's legal team also sought disclosure of the court order to F's immigration lawyers.
The parties here are married. Accordingly, F is granted parental responsibility for his children automatically, see Section 2(1) Children Act 1989 (“the Act”). Withdrawal of parental responsibility is provided for by Section 4(1) of the Act:
“Acquisition of parental responsibility by father .
(1) Where a child's father and mother were not married to, or civil partners of, 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”
Section 4(2)(A) provides:
“A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.”
Accordingly, as Section 4(1) only applies if the parents were not married at the time of the birth, the provisions of Section 4(2)(A) are not engaged. This is undoubtedly anomalous. The question has been raised as to whether such a distinction between married and unmarried parents is compatible with the European Convention on Human Rights. The matter has been considered by Russell J in Re A and B (Children: Restrictions on Parental Responsibility: Radicalisation and Extremism) [2016] 2 FLR 977 and, in greater focus, in MZ v FZ and others [2022] All ER (D) 130. In that case, a declaration of incompatibility in respect of ss (2) and (4) of the Act was sought. The Secretary of State intervened. Russell J concluded that Parliament had determined that “birth” mothers and “married” parents should be afforded an irrevocable legal status and that there were legitimate reasons underpinning the legislative distinction, which also resonated in other areas of Family law. These, Russell J concluded, established ‘weighty reasons’ justifying a difference in treatment, predicated on marital status. Accordingly, she determined that the statutory scheme was not incompatible with the Convention. Importantly, in her detailed factual analysis of the case, Russell J concluded that the inability of the applicant to secure a revocation of the respondent's parental responsibility had not amounted to a failure on the part of the State in its positive obligation or duty to do what was reasonable in all the circumstances, to protect her and the children from a real and immediate risk of harm:
“[128] The undoubted psychological harm, fear, anxiety, and emotional distress suffered was largely caused before these applications were made to the court. The residual trauma is undoubtedly severe enough to require treatment, but its primary cause was the behaviour of the FZ in the present case and not as a result of her inability to make an application to revoke parental responsibility as opposed to the CA 1989 orders granted which have virtually extinguished FZ's ability to exercise that parental responsibility. Such distress as that inability to apply for revocation has caused fail to meet the minimum level of severity threshold. The courts have held this to be a very high bar. I was referred to a number of cases where the domestic courts have concluded that the minimum level of severity had not been reached and/or Art 3 had not been violated, some of which made uneasy reading. [8] In AB v Secretary of State for Justice [2019] EWCA Civ 9 which concerned a minor, the suffering caused to a young offender who was placed on a “single lock'” regime whereby he could not leave his cell unless no other inmates were out of theirs for 55 days was found by the Court of Appeal that it did not violate Article 3, where a positive obligation was asserted.
[129] I do not consider that the inability of MZ to apply for a revocation of FZ's parental responsibility amounts to failure on the part of the State in its positive obligation or duty to do “what is reasonable in all the circumstances to protect her (or the children) a real and immediate risk of harm”: Re E (A Child) (Northern Ireland) [2009] AC 536 per Baroness Hale. The available orders which have been granted by this Court are in this context reasonable and afford protection.”
As Russell J observed in MZ v FZ (supra), society and families have changed very considerably since the introduction of the Children Act 1989 (in October 1991). Cohabitation outside marriage has become far more commonplace. Marriage is available to same-sex couples, civil partnerships have been created and extended to heterosexual couples, carrying with them, the same privileges, and responsibilities of marriage. The Human Embryology and Fertilisation Act 1990 has now opened opportunities for biological parenthood to those for whom it would never otherwise been available. In this case, I found that F had raped M on more than one occasion. It is worth reflecting that even the concept of marital rape was not recognised until after the Children Act came into force. Each of these developments represents significant social change. Collectively, they reveal a very different social landscape to that facing the authors of the Children Act 1989. Prescient though the legislation has proved to be, I do not think it could have contemplated social change on the level we have seen. Against this backdrop, it is uncomfortable to realise, in 2022, that M may not make an application to divest F of his parental responsibility entirely due to the fact that she was married to him when the children were born. Moreover, by the time of the marriage, as I found in the judgment, M's autonomy had already been significantly corroded in consequence of her treatment by F. Her parents believed and continue to believe that the marriage was driven by F's desire to obtain leave to remain in the United Kingdom. However, whilst I find this anomaly of legal status to be profoundly uncomfortable, I do recognise that the contemplated protection for the applicant parent and children is to be found in the regime of Prohibited Steps Orders and Specific Issue Orders which the Children Act affords. Thus, whilst the legal status of a married father remains intact, it can be stripped of any potency to reach into the lives of the mother and children. His ability adversely to affect the welfare of either may be effectively prevented. This was the approach endorsed by Sir Andrew McFarlane P in Sheikh Mohammed v...
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