Re CB (A Minor) (Parental Responsibility Order)
| Jurisdiction | England & Wales |
| Judgment Date | 13 November 1992 |
| Court | Family Division |
WAITE, J
Parental responsibility – application by unmarried father – factors to be taken into account.
The parents were unmarried. They had one child, a daughter, who was now aged 7. For the first four years of her life she was brought up by both parents. In December 1989, when she was 4½, the parents separated, the child staying with the mother. After the separation the father remained in close contact with the child. There was considerable social work concern about the child's development and the mother's care of her. In January 1992 the child suffered a non-accidental injury whilst in the mother's care. The mother was convicted of occasioning actual bodily harm to the child. The local authority commenced care proceedings and under interim orders they placed the child with the father. The father filed applications for a residence order and for a parental responsibility order. The local authority's case was that the child should remain with the father either under a residence order coupled with a supervision order or under a care order. The mother sought the return of the child to her care. The guardian ad litem, after reviewing the options open to the court, recommended a residence order to the father and a supervision order. The magistrates made a care order and orders for contact to both parents. In the course of their reasons the magistrates observed that the child had lived with the mother all her life and that, although she appeared to have settled well with the father, this change of circumstances should not be regarded as permanent and that the child should gradually be rehabilitated with the mother. The magistrates concluded that if a residence order was made in favour of the father this could result in the child losing contact with the mother. Therefore, they found that it was not appropriate to make a residence order or give the father parental responsibility.
The father appealed against the refusal of the magistrates to make a parental responsibility order.
Held – allowing the appeal: The magistrates had erred in that they had failed to consider the father's application for a parental responsibility order as an independent consideration in its own right. This had disabled them from considering it properly because they subordinated it to the overriding objective of the child's rehabilitation with the mother. The important factors were the father's degree of commitment at the time of the hearing, the extent of the mutual attachment between him and the child at that time, and his motives
for seeking parental responsibility. Had the magistrates carried out an examination of these factors, there could have been only one answer. There could be no objection to conferring parental responsibility on a father who had come forward at a time of crisis to act as the child's carer, who was as obviously attached to her as she was to him, and of whom the guardian ad litem spoke favourably as a person who, with appropriate help and supervision, was likely to prove capable of giving her proper care. The view that such an order would somehow provide an obstacle to an eventual rehabilitation with the mother could not be sustained. The refusal of a parental responsibility order was plainly wrong. Therefore, the order of the magistrates would be varied by adding to the care and contact orders a parental responsibility order.
Per curiam: Although the magistrates had stated in their reasons that, in their opinion, the child should be gradually rehabilitated with the mother, in this case that did not amount to the grafting onto a care order a specific direction to the local authority that they were to pursue a particular course or policy in relation to the child. Had it done so, the magistrates would have fallen into error. The order the magistrates made contained no direction on its face placing a fetter on the local authority's discretion and their remarks as to the rehabilitation of the child with the mother were expressed as a recommendation only.
Statutory provisions referred to:Children Act 1989, ss 1, 3, 4, 12 and 31.
Family Law Reform Act 1987, s 4.
RSC Ord 55 rr 3 and 7, Ord 59 r 3.
Cases referred to:A v Liverpool City Council [1982] AC 363; [1981] 2 All ER 385.
C (Minors) (Parental Rights), Re [1991] FCR 856; [1992] 2 All ER 86.
CN (A Minor) (Care Order), Re[1992] 2 FCR 401; sub nom Kent County Council v C [1992] 3 WLR 808.
Croydon London Borough v A and Another[1992] 1 FCR 522; [1992] 3 WLR 267; [1992] 3 All ER 788.
Croydon London Borough v A and B[1992] 2 FCR 481.
G v G (Minors: Custody Appeal) [1985] 1 WLR 647; [1985] 2 All ER 225.
H (A Minor) (Contact and Parental Responsibility), Re[1993] 1 FCR 85.
H (Minors) (Rights of Putative Fathers) (No 2), Re [1991] FCR 361; sub nom Re H (Minors) (Local Authority: Parental Rights) (No 3) [1991] Fam 151; [1991] 2 All ER 185.
Hereford and Worcester County Council v D [1991] FCR 56; sub nom D v Hereford and Worcester County Council [1991] Fam 14; [1991] 2 All ER 177.
Helen Soffa for the father.
Janet Ali for the guardian ad litem.
Usha Teji for the local authority.
MR JUSTICE WAITE.The seven-year-old child with whom this appeal is concerned, was brought up for the first four years of her life by her unmarried
parents. In December 1989, when she was 4½ years old, her parents separated and she remained in the sole care of her mother. There had been considerable social work concern about her development before the separation, prompted by reports from the health visitor, and later from the school, that she was backward in speaking and emotionally understimulated. For a time during that period she was placed on the child protection register.
Her father remained in close contact with her after separating from her mother, but the end of her parents' relationship, which had been a troubled and often stormy one, did nothing to allay the concern of the local authority. There were signs that the mother was finding the problems and responsibilities of bringing up the child as a single parent too much for her.
In April 1990, the father reported that the electricity had been disconnected at the mother's home. In November of that year the school was sufficiently troubled by her lack of progress to arrange for her assessment by an educational psychologist. That could not proceed, because the mother refused her consent. In August 1991 a neighbour was sufficiently concerned to report to the social services that the child was frequently left unattended inside and outside the mother's home.
Matters came to a head in January of this year, 1992, when the child suffered an injury to her nose while in her mother's care, which was diagnosed as non-accidental. The mother was charged with occasioning actual bodily harm to her daughter, and was in due course convicted and bound over. The local authority started family proceedings under the Children Act 1989, in which they obtained emergency protection and interim care orders under the authority of which they placed the child temporarily in the care of her father.
While the main hearing of those proceedings was still pending before the magistrates, the father made two applications of his own to the court. One was for a residence order, and the other was for a parental responsibility order. The mother at this time, unfortunately, became sufficiently disturbed emotionally to require compulsory admission to hospital. Her appeal against enforced treatment was, however, upheld by a Mental Health Review Tribunal and she was discharged on 2 April 1992.
The main hearing before the magistrates took place on 28 April 1992. They had to deal with three applications: the local authority's request for a care order, and the father's two applications, one for a residence order and the other for a parental responsibility order. All parties – that is to say the mother, the father, the local authority, and the child herself – were separately represented.
Before I go on to describe the course and outcome of that hearing, it would be convenient to stand aside...
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