Re CD (Notice of Care Proceedings to Father Without Parental Responsibility)

JurisdictionEngland & Wales
JudgeJudge Bellamy
Judgment Date24 May 2017
Neutral Citation[2017] EWFC 34
Date24 May 2017
CourtFamily Court

[2017] EWFC 34

IN THE FAMILY COURT

His Honour Judge Clifford Bellamy

(sitting as a Deputy High Court Judge)

Re CD (Notice of Care Proceedings to Father Without Parental Responsibility)

Mark Saunders, counsel for the applicant local authority

Anthony Finch, counsel for the first respondent mother

Catherine Rodgers, solicitor for the father of Y and Z

Hannah Bramley, solicitor for the children

Claire van Overdijk– advocate to the court

This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates and any other persons identified by name in the judgment itself may be identified by name and that in particular the anonymity of the children, the adult members of their family and their location must be strictly preserved.

Judge Bellamy
1

A local authority applies to the court for care orders in respect of three children, X, Y and Z. The children are all under 10 years of age. The mother of all three children is B. The father of X, the oldest child, is CD. The father of the younger two children is H.

2

H has parental responsibility for Y and Z. In accordance with the provisions of rule 12.3 of the Family Procedure Rules 2010 ('FPR 2010') he is, therefore, entitled to automatic party status in these proceedings. CD does not have parental responsibility for X. He is not, therefore, entitled to automatic party status. In accordance with paragraph 3.1 of FPR 2010 Practice Direction 12C he is, though, entitled to receive a copy of Form C6A (Notice to Non-Parties) which must be sent to 'every person whom the applicant believes to be a parent without parental responsibility for the child'.

3

In this case the local authority seeks an order that CD should not be sent a copy of Form C6A. That application is supported by all other parties. That is the application with which I am now concerned.

4

The court is grateful to the Attorney General for agreeing to provide an advocate to the court. Counsel appointed by the Attorney General, Miss Claire van Overdijk, has provided the court with a skeleton argument in which undertakes a rights based analysis of the issues before the court setting out a detailed and comprehensive outline of the relevant law and its application to the facts of this case. She has supported her skeleton with oral submissions. I am indebted to her for her considerable assistance.

Essential background

5

The mother was introduced to CD when she had just left school. He was then serving a prison sentence. Their relationship began after his release. At some point they began to live together. It is not clear when that was.

6

In 2007 the mother became pregnant. She was still cohabiting with CD. During her pregnancy CD and his parents appeared before the Crown Court. CD received a two-year custodial sentence for offences of dishonesty. His parents (X's paternal grandparents) were convicted of drug-related offences. Paternal grandfather was sentenced to a term of imprisonment. Paternal grandmother received a suspended prison sentence. CD was in prison when X was born.

7

CD's earliest release date would have been twelve months from the date of sentence. Within a week of his release he again appeared before the Crown Court. He was sentenced to an eighteen-month term of imprisonment. His actual release date is not known. The earliest date on which he could have been released was in July 2009.

8

The mother says that during her relationship with CD she was subjected to domestic violence. CD assaulted her on a regular basis (she says at least every other week). Sometimes he caused bruising. There have been times when he has threatened her 'with all kind of weapons including knives, axes and guns'. He was also controlling.

9

The mother and CD did not resume their cohabitation after his release from prison in the summer of 2009. However, the mother did allow him to visit her home to see X. He stayed overnight on occasions though it is not clear how frequently. X's paternal grandmother and step-sister (CD's daughter from a previous relationship) would also call round to see X from time to time.

10

The mother says that there was an incident in 2010 when CD was in drink and was violent towards her. He dragged her across the road by her neck. There is some corroboration for this incident in the material disclosed by the police. It is also clear from the police disclosure that they considered CD to be a risk to the mother. One note reads 'Any calls relating to [CD]…treat as urgent…[CD] is known to be violent.'

11

CD has a criminal record spanning more than twenty years. His record includes two convictions for offences of violence. Neither of those offences relates to acts of inter-partner violence.

12

In 2010 the mother and X moved to live in a different part of the country. She did so to get away from CD. CD found out where they were living. He visited them regularly. Again, the mother allowed him to stay overnight when he visited.

13

By November 2010 the mother had stopped CD from having contact with X. CD could have made an application to the court for contact. He has not done so. Since contact stopped CD has not taken any step with a view to reinstating it.

14

The mother describes an occasion in 2011 when CD tried to break into her home. She was very frightened. The next day she moved to live with a relative. She subsequently moved to live in a new area. It was at about this time that she began her relationship with H.

15

Although the mother has not seen CD since that last incident, she is convinced that he has been attempting to track her down. In her oral evidence the mother told the court that when she was last in contact with CD in 2010 he told her he had paid a private investigator to find her and that he would come to her home and throw acid in her face. After moving to the area where she now lives she received an approach from a third party informing her that CD had been looking for her and had offered money to find her. When she attended to sort out her benefits she was informed that someone had tried to impersonate her and had asked for details of her address.

16

In June 2016 the local authority undertook a parenting assessment of the mother and H. H told the assessor that he had received telephone calls from CD demanding money and threatening violence if the money was not paid. H did not comply with CD's demands. When he returned to his flat he found that it had been broken into.

17

In 2015 CD was sentenced to a six-year term of imprisonment for an offence of violence. He is still in prison. At the time he was sentenced it had been almost five years since he last had contact with X.

18

The local authority has known the mother since 2010. In her initial statement the allocated social worker says that on a date in 2010:

'75. …Children's services received a police referral reporting that CD was suspected of being violent towards [the mother] whilst pregnant, including dragging [her] into a property after assaulting her in the park. The police attended and [the mother] was heard to shout not to let the police in. A request to force entry in the property and to use a tazer (sic) was granted due to [CD] having links to firearms…'

19

There is a note in local authority records that in October 2011 CD was seen in the locality and was thought to be asking someone to impersonate the mother so that he could have access to her private information such as details of her GP and of the school X attended. The local authority made a referral to Women's Aid. The mother did not engage.

20

The mother is concerned that if CD were made aware of these proceedings there is a real risk that he would seek her out and that he would become threatening and violent towards her and her family. She continues to be fearful of him.

Family life

21

Article 8 of the European Convention on Human Rights and Fundamental Freedoms ('the Convention) is headed, 'Right to respect for family and private life'. It provides that:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'

The first issue to be determined is whether the relationship between CD and X can properly be described as amounting to 'family life'.

Family life – the law

22

The determination of whether family life exists in any particular case has been the subject of significant jurisprudence both in this country and in the European Court of Human Rights.

23

In K v United Kingdom (1987) 50 D&R 199 (ECommHR) at p.207 the European Commission held that,

'The question of the existence or non-existence of "family life" is essentially a question of fact depending upon the real existence in practice of close personal ties.'

24

Keegan v Ireland (1994) 18 EHRR 342 concerned the decision by a mother to relinquish her baby for adoption without the knowledge or consent of the baby's father. The mother became pregnant shortly after she and the father married but the marriage broke down before the baby was born. The father contended that in placing the child for adoption without his knowledge or consent there had been a violation of his right to respect for family life in contravention of Article 8. In its judgment the court said that it,

'44. …recalls that the notion of the "family" in this provision is not confined solely to marriage-based...

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3 cases
  • S (A Child)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 20 Junio 2023
    ...Article 6 and 8 rights, including those matters set out in Re CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34 at [29] (‘ Re CD’) which are: “(a) the determination of whether family life exists is essentially a question of fact; (b) family life is not......
  • Re P (Notice of care proceedings to father without parental responsibility)
    • United Kingdom
    • Family Court
    • 11 Marzo 2019
    ...set out my reasons. The law 7 In May 2017 I gave judgment in Re CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34, [2017] 4 WLR 110 (‘ Re CD’). That case raised similar issues of law to those raised in this case though it related to facts which were ma......
  • The Mother v Northumberland County Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 13 Agosto 2021
    ...measure to cases involving adoption. He had been invited to regard the decision in CD (Notice of care proceedings to father without PR) [2017] EWFC 34 and Re M (Notification of Step-parent Adoption) [2014] EWHC 1128 as indicating a ‘rights-based’ approach. It had been submitted that S had n......

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