Re H (Illegitimate Children: Father: Parental Rights) (No. 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE |
| Judgment Date | 20 November 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1120-2 |
| Docket Number | 90/0998 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 November 1990 |
[1990] EWCA Civ J1120-2
Lord Justice Neill
Lord Justice Balcombe
Lord Justice Mann
90/0998
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SLOUGH COUNTY COURT
(HIS HONOUR JUDGE MORTON JACK)
Royal Courts of Justice
MR PHILIP VALLANCE Q.C. and MISS SALLY SMITH, instructed by Messrs Winter-Taylors (High Wycombe), appeared for the Appellant (Applicant).
MRS HELEN GRINDROD and MISS MHAIRI McNAB, instructed by Messrs Griffiths Robertson (Reading) as agents for Berkshire County Council, appeared for the First Respondent (First Respondent).
MR ALLAN LEVY Q.C. and MR DAVID TURNER, instructed by Anthony T. Evans Esq. (Upper Basildon), appeared for the Guardian Ad Litem.
This is the judgment of the court.
This is an appeal from three orders made by His Honour Judge Morton Jack in the Slough County Court on 19th January 1990:
(1) refusing the appellant's application for an order under section 4 of the Family Law Reform Act 1967 giving him parental rights and duties with respect to two children, Jonathan, born on 18th October 1982, and Samantha, born on 27th December 1983;
(2) freeing Jonathan for adoption and vesting the parental rights and duties relating to him in the Berkshire County Council;
(3) freeing Samantha for adoption and vesting the parental rights and duties relating to her in the Council.
The appellant met the mother of Jonathan and Samantha in the spring of 1981. They then started living together, but they never married. However, it is common ground that the appellant is the father of these two children. They lived together as a family unit until February 1985, except for a brief period in August 1984 when the father left the home, but returned shortly thereafter. The judge found that during this period the father had little to do with the care of the children: he felt that he was the bread-winner and that while the mother was at home she should care for them. In February 1985, when Jonathan was two years and four months and Samantha was a little over 13 months old, the father left home for good. On 24th March 1985 the mother left the children in the care of her parents. They were unable to look after the children and contacted the Council's Social Services Department. On 25th March 1985 a place of safety order was made in respect of both children and they were placed with a Mr and Mrs Lee as short-term foster parents.
On 23rd May 1985 the Council's application to the juvenile court for a care order was refused, on the basis that there should be an opportunity to rehabilitate the children with the mother, but on the same day she placed the children in the voluntary care of the Council under section 2 of the Child Care Act 1980 and they remained with the Lees. Subsequent attempts to rehabilitate the children with the mother failed and on 27th August 1987 the Council passed a parental rights resolution in respect of the mother's rights under section 3 of the Child Care Act 1980. It will be appreciated that at that time the father had no parental rights because he and the mother had not married.
The children remained in the care of the Lees and were visited regularly by the father, with rather less regularity by the mother, and also by their grandparents. The judge described the father's position at this time in the following passage from his judgment:
"What had happened was that while the children were very small and the father was living with them under stress he paid very little attention to them. When they were being very well cared for by Mr and Mrs Lee and they were becoming older, and what was involved was visits of an hour or two or so, perhaps weekly, he became much more, and I am quite satisfied, genuinely fond of them. One could say that the circumstances in which he was seeing the children at the Lees were much easier for him, and of course, with all the present giving and spree taking, the occasional visitor who comes to play has none of the stress and difficulties of the day to day care of small children; of course it is easy for him and the children to get on well together. But that does not really matter, because the plain fact is that I am quite satisfied that he has become, over the course of his access, fond and concerned for the children and that, particularly, Jonathan has returned his fondness".
Until May 1986 the father had regular access twice a week. The frequency of access was then much reduced by the Council and at the end of 1987 all access by the natural family was stopped, the Council having decided that the children needed a permanent home. The father last saw the children on 28th December 1987.
In February 1988 the children were introduced to prospective adopters, but that introduction broke down and they remained with Mr and Mrs Lee. On 17th March 1988 the Council made an application to free both children for adoption and on 24th May 1988 the father made an application under the Guardianship of Minors Act 1971 for custody and access to both children. The judge described the father's application for custody as unrealistic—he had no home to offer the children—and said that his application was simply an attempt to secure continuing access. In September 1988 the Council started to introduce the children to a new adoptive family. On 1st October 1988 the children left the Lees and were placed with the new adoptive family: they are still there.
The Council's application to free the children for adoption and the father's application for custody and access came before Judge Marder sitting in the Slough County Court on 25th October 1988. The judge dismissed the father's application for custody and access, ruled as a preliminary point of law under section 18(7) of the Adoption Act 1976 that, as the father's application for custody must be refused, the only consent to the freeing of the children for adoption with which the court was concerned was that of the mother, and adjourned the further hearing of the Council's application to free the children for adoption.
The father and the mother both appealed against the judge's ruling on the preliminary point: the father appealed against the judge's refusal to grant him custody of the children. These appeals came before another division of this court on 11th April 1989, when the father's appeal against the refusal to grant him custody was dismissed, but no order was made on the appeal on the preliminary point of law, since the court was of the view that the point had become academic upon the coming into force, on 1st April 1989, of section 4 of the Family Law Reform Act 1987 and a new section 18(7) of the Adoption Act 1976, and directed that the freeing application should go back to the court of first instance to be dealt with on its merits under the new provisions. The judgment of this court is reported in [1989] 1 W.L.R. 551. However, at the hearing of the appeal the court's attention had not been drawn to the transitional provisions of the 1987 Act, which provided that the Act should not have effect in relation to applications pending at the time when the provision in question came into force. When this point was brought to the attention of the court— [1989] 1 W.L.R. 1025—the Council indicated that it would withdraw its then current application to free the children for adoption, and would make fresh applications under which the father would be able to take advantage of his rights under the 1987 Act and under section 18(7) of the 1976 Act as amended.
On 6th September 1989 the Council made its fresh applications to free the children for adoption and on 16th October 1989 the father made his application for a "parental rights order" under section 4 of the 1987 Act. These applications came before His Honour Judge Morton Jack on 19th January 1990, with the results we have indicated above.
Until the recent changes in the law, the father of a child born out of wedlock had only very limited rights in relation to the child. He was not a parent of the child within the meaning of the Child Care Act 1980 (although he was a relative)—see section 87(1); he had no parental rights and duties under the Children Act 1975—see section 85(7); he was not a parent of the child for the purposes of the Adoption Act 1976—see In re M (an Infant) [1955] 2 Q.B. 479—although he might be its guardian if so appointed or if he had custody under section 9 of the Guardianship of Minors Act 1971—see section 72(1) of the 1976 Act. Although as against the mother he could obtain an order for custody of the child under section 9 of the 1971 Act, he could not obtain such an order if the child was in the care of a local authority—see In re M and H (Minors) (Local Authority: Parental Rights) [1990] 1 A.C. 686. Nor was he a parent of the child for the purpose of applying under part 1A of the 1980 Act for access to the child if in care—see Re N (Minors) (Parental Rights: Access) [1989] 2 F.L.R. 106.
That position has now been changed by the Family Law Reform Act 1987 and, more recently, by the Children Act 1989, although some of the relevant provisions of the latter Act are not yet in force. The method adopted was not to equate the father of a child born out of wedlock with the father of a legitimate child: it was to give the putative (or natural) father the right to apply for an order giving him...
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