Re D (A Child)
Jurisdiction | England & Wales |
Judge | Lord Justice Ryder,Lady Justice Gloster,Lady Justice Arden |
Judgment Date | 26 March 2014 |
Neutral Citation | [2014] EWCA Civ 315 |
Docket Number | Case No: B4/2013/1192 |
Court | Court of Appeal (Civil Division) |
Date | 26 March 2014 |
[2014] EWCA Civ 315
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION OF THE HIGH COURT OF JUSTICE
BAKER J.
BH11P00251
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lady Justice Gloster
and
Lord Justice Ryder
Case No: B4/2013/1192
Alex Verdan QC with Saoirse Townshend (instructed by Galbraith Branley Solicitors) for the Appellant
Alistair MacDonald QC with Andrew Lorie (instructed by Dickinson Manser LLP) for the Respondent
Hearing date: 29 November 2013
On 12 April 2013 Baker J made an order removing the appellant father's parental responsibility for his son on the application of the child's mother who is the respondent to this appeal. The child who was born in 2004 and who I shall call D is the parties' only child. The parties have not been married. The appellant was named on D's birth certificate as the father and he accordingly has parental responsibility for him. D's mother has two daughters by a previous relationship. In 2009, D's father pleaded guilty to sexual offences committed against those two young women. He was sentenced to 48 months imprisonment and was released in June 2011.
Immediately upon his release D's mother issued an application that the father's parental responsibility for D should cease and the father cross applied for a specific issue order requiring D's mother to provide him with annual reports about D's progress. D's father has not made and says that he does not intend to make any other application under section 8 of the Children Act 1989 [CA 1989], in particular for contact with D. In fact he has not had contact with D since D was 4 years of age.
The concept of parental responsibility
Parental responsibility which was introduced by the CA 1989 replaced the concept of parental rights in section 4 of the Family Law Act 1987 and is defined by section 3(1) CA 1989 as: "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property".
An unmarried father has parental responsibility for his child by being registered as the child's father on his birth certificate, by a parental responsibility agreement entered into between the parents or by a court order. An unmarried father can only lose parental responsibility by an order of the court to that effect.
Section 111 of the Adoption and Children Act 2002 [ACA 2002] amended the CA 1989 to introduce the automatic conferment of parental responsibility where an unmarried father is named on a birth certificate after 1 December 2003. It did not alter the statutory provisions in section 4 CA 1989 relating to the cessation of parental responsibility. The amended provisions are as follows:
"4(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.
[…]
4(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
[…]
4(2A) A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.
4(3) The court may make an order under subsection (2A) on the application
(a) of any person who has parental responsibility for the child …"
As this court said in Re M (A Child) sub nom PM v MB and M (A Child) [2013] EWCA Civ 969 at [14]:
"Since 1 December 2013 and by section 4(1) CA 1989 as inserted by section 111 Adoption and Children Act 2002, an unmarried father acquires parental responsibility by the inclusion of his name on the child's birth certificate. That legislative change accompanied society's recognition of and expectations for the exercise of parental responsibility by parents who are not married or in a civil partnership and who have separated with the consequence that the child does not live with one or other of them. It has become more common for parental responsibility to be considered by a court before other substantive welfare decisions are made because it is an important status which is an incident of the family and private lives of the adults and child concerned and which is reflected in the way in which parents should exercise their responsibilities for their child. It should be rare for a father not to be afforded this status."
There is only one reported case of significance in relation to section 4 CA 1989 and that is Re P (Terminating Parental Responsibility) [1995] 3 FCR 753, a decision of Singer J prior to the statutory amendment. It is submitted by Mr Verdan QC on behalf of the appellant father that given the principles articulated in Re P and the changes to social conditions and norms since 1995, the judge ought not to have removed the father's parental responsibility in this case. Mr MacDonald QC for D's mother firmly resists the appeal and seeks to uphold the analysis of the judge below.
The question of the differential treatment of married and unmarried fathers by the statutory scheme is not before this court for consideration. Neither mothers nor married fathers can have their parental responsibility removed. That was the issue in Smallwood v UK (29779/96) (1999) 27 EHRR CD 155, an admissibility decision of the Commission in which it was held that the difference in treatment between mothers, married and unmarried fathers in the context of the jurisdiction of the court to make an order which removes an unmarried father's parental responsibility is not a violation of article 8 ECHR [the Convention] taken in conjunction with article 14. On that basis the father in this case was refused permission to appeal on the question of whether the differential treatment was proportionate and whether section 4(2A) CA 1989 was incompatible with the rights set out in articles 8 and 14 of the Convention.
The grounds of appeal upon which permission was granted are that:
i) the judge failed to distinguish Re P to have regard to the principles set out in the Human Rights Act 1998 [HRA 1998], the ACA 2002 and the changing social norms over the 18 years since Re P;
ii) the judge failed to consider whether the mother had discharged the burden of proof so as to establish the allegation that the father was "a sexual recidivist"; and
iii) the judge failed to make a proportionate order or take into account the asserted policy consideration that applications of this kind should not be allowed to become "a weapon in the hands of a dissatisfied mother".
The concept of parental responsibility is not further defined in any enactment and its significance in the CA 1989 is as to the contribution to a child's welfare that the status confers on the adult concerned. That much is clear from the statutory scheme: parental responsibility is conferred on non-parents who are granted residence or special guardianship orders, is granted to a local authority when a care order is made and may be shared by adults and agencies. The scheme also provides for a priority in the exercise of the responsibility when it is granted to a local authority or a special guardian. As the Law Commission said in its report 'Family Law Review of Child Law, Guardianship and Custody' [1988] EWLC 172 at para 2.4: "the powers which parents have to control or make decisions for their children are simply the necessary concomitant of their parental duties": Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112.
The concept of parental responsibility describes an adult's responsibility to secure the welfare of their child which is to be exercised for the benefit of the child not the adult. The all encompassing nature of the responsibility underpins one of the principles of the Act which is the 'no order' principle in section 1(5) CA 1985: the expectation that all other things being equal parents will exercise their responsibility so as to contribute to the welfare of their child without the need for a court order defining or restricting that exercise. That the status relates to welfare not the mere existence of paternity or parenthood is clear from the decision in Smallwood v UK.
When a court is considering an application relating to the cessation of parental responsibility, the court is considering a question with respect to the upbringing of a child with the consequence that by section 1(1)(b) CA 1989 the child's welfare will be the court's paramount consideration. By section 1(4), there is no requirement upon the court to consider the factors set out in section 1(3) (the 'welfare checklist') but the court is not prevented from doing so and may find it helpful to use an analytical framework not least because welfare has to be considered and reasoned. Given that the cessation of parental responsibility is an order of the court, the court must also consider whether making such an order is better for the child than making no order at all (the 'no order' principle in section 1(5)).
The paramountcy test is overarching and no one factor that the court might consider in a welfare analysis has any hypothetical priority. Accordingly, factors that may be said to have significance by analogy or on the facts of a...
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