Re A (Father: Knowledge of Child's Birth)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,Lord Justice Longmore,Lady Justice Black |
| Judgment Date | 17 March 2011 |
| Neutral Citation | [2011] EWCA Civ 273 |
| Docket Number | Case No: B4/2010/2390 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 2011 |
[2011] EWCA Civ 273
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Honourable Mr Justice Mostyn
Before: the Right Honourable Lord Justice Thorpe
The Right Honourable Lord Justice Longmore
and
The Right Honourable Lady Justice Black
Case No: B4/2010/2390
FD10P001660
Richard Anelay QC and Philip Squire (instructed by Wimbledon Solicitors) for the Appellant
Caroline Smith (instructed by the Local Authority) for the 2 nd Respondent
David Boyd (instructed by CAFCAS) for the 3rd Respondent
Simon Murray (instructed by the Attorney General) Advocate for the Court
Hearing dates: Friday 17th December 2010
Introduction
This is the appeal of the mother (hereinafter "M") against the judgment of Mostyn J dated 20 th September 2010 refusing the mother a wide ranging series of declarations, the object of which was to deny the father (hereinafter "F") all knowledge of the birth and subsequent development of his legitimate child (hereinafter "BA") born on 23 rd July 2010.
On 13 th October the mother filed her Appellant's Notice and on 28 th October My Lady, Black LJ, directed that the permission application should be adjourned to an oral hearing with appeal to follow if permission granted. She effectively granted a stay by directing that the Local Authority should not inform F of the existence of BA or of the appeal pending the hearing. My Lady identified the point for determination, namely whether the judge misdirected himself that "nothing less than a significant physical risk" would justify withholding knowledge of the birth of BA from F.
Clearly, My Lady was right to identify that issue as suitable for determination by the full court. However, in my judgment, the outcome of this appeal is not dependant on the resolution of that issue. On the facts as the judge found them M had no realistic prospects of succeeding in her application for declarations. Mostyn J was plainly right to dismiss her application. In seeking to reverse his decision, Mr Richard Anelay QC with Mr Squire, has no realistic prospect of success.
The History
I cannot do better than adopt the summary written by Mostyn J. In paragraphs 7 to 20 he set out the background succinctly but comprehensively:
"7. F is 49. M is 42. Both parties are of Sikh origin and lived in Afghanistan. They married in March 1986. When in Afghanistan they had three children, now all of age: A daughter SP now aged 23, a son SS now aged 20 and a daughter MK now aged 19. SP, who swore an affidavit and gave oral evidence, is now married and has a child. SS and MK live with M and F. The daughters know of the existence of BA; the son SS does not, and it is not proposed ever to tell him.
8. According to M's unchallenged evidence about 4 years after the marriage F's sister's husband was murdered by the Taliban, actually dying in F's arms. The Taliban also killed other family members including F's brother's wife. F himself was kidnapped and beaten up by the Taliban. Since then F has suffered from mental health problems.
9. In 1998 the family came here and was, on account of their persecution, granted asylum. F has been under constant psychiatric care since, although it is not suggested that he is incapacitated within the meaning given by the Mental Capacity Act 2005. A letter from West London Mental Health NHS dated 19 January 2010 states that F suffers from Severe Depression with Psychotic Symptoms and Post Traumatic Stress Disorder. He suffers from nightmares and terrifying flashbacks of the horrible incidents. He hears the voices of dead family members asking for help.
10. In her affidavit M describes F's unpredictable and frightening behaviour that results from his mental condition. She describes an incident of domestic violence about three years ago when F tried to hit M; the police were called and F was arrested. On other occasions F has threatened to kill himself with a knife. He has tried to strangle M during the night.
11. The police record reveals that in April 2008 MK had to call the police as F was being very threatening and abusive to M. In July 2008 F was arrested for being drunk and disorderly. In August 2008 F, while drunk, slapped MK; the police were called.
12. Obviously life with F must be very challenging. His mental condition means that he is unpredictable and volatile. That said there is no proposal that the family should split up. The marriage continues to function as well as it can. This involves M and F having normal marital intercourse.
13. As a result of one such act of intercourse in October or November 2009 M, then aged 41, fell pregnant. Her evidence to that effect was not challenged and having seen her in the witness box I judge it very improbable that she would have had an adulterous affair with a third party.
14. According to her affidavit she did not realise that she was pregnant at the time. She felt ill, had stomach pains and was vomiting. Her GP told her that it was either acidity or a hernia. She was given medication and told to take exercise. Later the GP told her that it could be the menopause.
15. Although it seems incredible, M did not become aware that she was pregnant until the GP sent her for an ultrasound in May 2010. This aspect of her evidence was not challenged, however surprising it may sound. By then it was too late for an abortion. M told only her daughters. Rightly or wrongly, the decision was made not to tell F or SS.
16. M and her daughters decided that the baby should be given up for adoption. The Local Authority was contacted. A social worker told them about the procedure. M explained that 'my husband should not be told about the baby due to his mental health'. In June 2009 M was told by a social worker that F would need to be told about the baby.
17. On 23 July 2010 BA was born. On the unchallenged evidence he is F's son. There is also the presumption of legitimacy in play. By virtue of the child having been born to married parents F is vested with parental responsibility.
18. On 26 July 2010 M was told again that F would have to be informed and his consent obtained for an adoption.
19. On the day of the birth BA was made a ward of court. Three days later the wardship was discharged and an interim care order made. BA was placed in foster care. There have been a number of review hearings leading to this hearing where the substantive relief sought will be adjudicated. Among the directions was an order that psychiatric evidence be obtained as to F's likely reaction on learning of these events. On 31 August 2010 an order was made for the appointment of an Advocate to the Court.
20. By virtue of the interim care order the Local Authority shares parental responsibility with the parents. BA's birth needs to be registered soon. M has been asked to suggest a name for him and to register his birth. She has declined to do so. The Local Authority will have to do this."
Mostyn J then surveyed the evidence in support of the application. Again, I would like to cite his judgment:
"21. M and SP made affidavits and gave oral evidence. There is a s47 report from the Local Authority dated 9 August 2010. There is a report from a consultant psychiatrist, Dr Ghosh, dated 18 August 2010. This was a desk-top exercise although F's medical records were to hand.
22. I deal first with Dr Ghosh's report. It was very guarded. He stated that it was possible that were F told 'there may be a subsequent deterioration in his mental health'. He was not able to assess what F's likely reaction would be were he to be told. He could not comment on whether F had the capacity to exercise parental responsibility.
23. The s47 report gave details of the police records mentioned above. It also recorded that at 32 weeks' gestation M had been treated for syphilis. While this raises obvious questions the matter was not explored in evidence and no serious reliance was placed on it. The report records SP saying on 23 June 2010 that it was a terrible thing for M, a grandmother, to be pregnant, and that their community would ostracise them if they knew about the pregnancy. Again, this aspect, while potentially relevant, was not explored in the evidence and no reliance has been placed on it.
24. The Affidavit evidence of M is summarised above in the narrative section of this judgment. SP filed a short confirmatory affidavit. In her oral evidence, given through a Punjabi speaking translator, M stated that F was not able to care for himself. He had hit her. She feared he would mistreat the child. She stated in chief:
'He doesn't know what he could do. If he were told he would not take it very well.'
Under cross-examination by the advocate to the court she stated:
'It is not fair for him, and it is not fair for the child. I just want that he shouldn't know about the child. I want no problems,'
In her evidence SP stated:
'If he were told now he would take his anger out on my mother. He would probably attack her, or me. Or he might be quiet and would react later on. He would be fine, maybe.'"
Mostyn J then reviewed the relevant authorities, five in number including, in this court, Re H, Re G [2001] 1 FLR 646 and Re AB [2004] 1 FLR 527. Next he stated his conclusions on the law thus:
"40. I believe that a distinction is to be drawn between those cases where the relationship with the putative father was fleeting involving no living together or family life; and those where the relationship is well established. In the latter case the...
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