Re J-S (A Child) (Contact: Parental Responsibility)
| Jurisdiction | England & Wales |
| Judgment Date | 2002 |
| Year | 2002 |
| Date | 2002 |
| Court | Court of Appeal (Civil Division) |
Child – Contact – Parental responsibility – Father seeking direct contact with child – Father seeking parental responsibility order – Father making referrals relating to child to local authority social services department – Whether direct contact in child’s best interests – Whether parental responsibility order should be made.
The father and mother had one child, born in 1998. During the early years of the child’s life the father had been an active parent. Then, the father and mother separated. Initially contact took place by consent, but the mother sought to reduce that contact and the father applied to the county court for a contact order and for a parental responsibility order. The judge found that the father had behaved deplorably towards the mother, acting violently towards her, but made an interim contact order until the matter could be reviewed. The father then made allegations of physical abuse and neglect of the child to the local social services department, and a further referral when he saw the mother’s partner dragging the child by his arm. The mother’s response was to terminate contact, and the father made an application to enforce the interim contact order. At the hearing, the judge held that those referrals, together with other referrals made prior to the first hearing, had been unjustified and that the father had continued to harass the mother by making them. He also found that the father had put into the child’s mind the false suggestion that the mother’s partner was hitting him. He asked himself whether there were cogent reasons why contact should be denied, and held that whilst the child obviously had happiness with his father and there had been no further violence or threats by the father towards the mother since the earlier hearing, the continued harassment and the putting in the mind of the child of false suggestions were such as to justify the denial of contact. The judge then went on to hold that the father would use parental responsibility to help him interfere further with the mother’s care of the child, and accordingly dismissed that application also. The father appealed on the grounds, first, that the judge had drawn excessively adverse inferences about his behaviour and, secondly, that the judge had not applied the proper test when considering the application for parental responsibility.
Held – (1) In deciding whether to deny contact to the father, the court’s paramount consideration was the child’s welfare and there had to be cogent reasons for denying contact. In the instant case, the judge had balanced the child’s happiness in his father’s company against the adverse conclusions that he had
formed with regard to the father’s behaviour, but in undertaking that balancing exercise he had failed both to make any critical assessment of the mother and to consider the possibility that the father’s referrals to social services came about because of his concern for the child’s well-being rather than out of an intention to harass the mother. Furthermore, the issue went much further than happiness; the child had a need for contact because he had an established attachment to his father, the severance of which would be harmful. The court had to look not only to the present consequences of termination, but to the medium and long term. Since the judge had left important aspects out of the balance that he had been striking, the court would interfere, and the order terminating contact would be discharged; G v G [1985] 2 All ER 225, Re H (minors) (access) [1992] 1 FCR 70 and Re L (a child) (contact: domestic violence); Re V (a child) (contact: domestic violence); Re M (a child) (contact: domestic violence); Re H (a child) (contact: domestic violence) [2000] 2 FCR 404 considered.
(2) Parental responsibility was a question of status with important implications for the father where, for example, the mother might later seek to take the child out of the jurisdiction. In the instant case, the judge had not had in mind the proper test which ought to have been applied to the application for parental responsibility, namely the degree of commitment the father had shown towards the child, the degree of attachment which existed between the father and the child, and the reasons of the father for applying for the order. Accordingly, the court was entitled to interfere. The matter was ultimately dependent on the welfare of the child, and in the instant case the father had played an important part in the life of the child during his early years, and was clearly devoted to him, to which the child responded in turn. Furthermore, since contact was to be restored, the father was entitled to play the natural role which fatherhood ordained for him by the very fact of his being a father. The case was overwhelming, and the father would be granted parental responsibility; Re H (minors) (rights of putative fathers) (No 2) [1991] FCR 361 applied. Re P (a minor) (parental responsibility) [1998] 3 FCR 98 considered.
Cases referred to in judgmentsG v G [1985] 2 All ER 225, [1985] 1 WLR 647; sub nom G v G (minors: custody appeal) [1985] FLR 894, HL.
H (minors) (access), Re[1992] 1 FCR 70, [1992] 1 FLR 148, CA.
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, [1991] 1 FLR 214, CA.
L (a child) (contact: domestic violence), Re; Re V (a child) (contact: domestic violence); Re M (a child) (contact: domestic violence); Re H (a child) (contact: domestic violence) [2000] 2 FCR 404, [2000] 4 All ER 609, [2001] 2 WLR 339, [2000] 2 FLR 334, CA.
Ladd v Marshall [1954] 3 All ER 745, [1954] 1 WLR 1489, CA.
P (a minor) (parental responsibility), Re[1998] 3 FCR 98, [1998] 2 FLR 96, CA.
P (minors) (parental responsibility: change of name), Re[1997] 3 FCR 733, [1997] 2 FLR 722, CA.
RH (a minor) (parental responsibility), Re[1998] 2 FCR 89, [1998] 1 FLR 855, CA.
AppealThe father appealed from the decision of Judge Lynch, sitting at Liverpool County Court, on 15 March 2002 whereby he ordered that the child have no direct contact with the father, and refused the father’s application for a parental responsibility order. The facts are set out in the judgment of Ward LJ.
The father appeared in person.
Gail Owen for the mother.
WARD LJ.[1] This is a father’s appeal against orders made by Judge Lynch in the Liverpool County Court on 15 March 2002, when he ordered that the child, R, with whom we are concerned should have no direct contact to his father but only indirect contact, the father being allowed to send the child a card and present at Christmas, on his birthday and at the start of the summer school holiday each year, provided they were sent to the mother’s solicitors. The father’s application for a parental responsibility order was refused. By an amendment made under the slip rule a review which had been fixed for August 2002 was vacated.
[2] The father is a 42-year-old Merseyside fire officer. The mother is a 33-year-old Australian. She has a son, J, soon to be ten, who is the child of a previous relationship. The parties met in about September 1997 and began to live together in about December 1997. They never married. R was born on 10 December 1998. He was registered at birth as the father’s child and was given names which reflect both his father’s name and his mother’s name. The father was, in the early years of the life of this child, an active parent, playing his part in the care and upbringing of the baby. Unfortunately, the relationship deteriorated and the parties separated in about April or May 2000. Until about December 2000 R spent four days and three nights of each week with his father. When the mother sought to reduce that contact the father applied to the court on 12 January 2001 for orders for staying contact and for a parental responsibility order.
[3] The mother alleged that the father was a man who had treated her with violence and was intimidating and harassing her. That led to the court directing that the matter be listed ‘for a finding of fact hearing as to interim contact and whether or not there has been domestic violence and/or harassment’. That was heard by Judge Lynch on 23 May 2001. The father appeared in person. The judge accepted ‘without hesitation’ the mother’s allegations and rejected the father’s version where there was a difference between them. On his own admission the father had accepted what the judge described as ‘deplorable conduct towards the mother which, even on his own version, would entitle her to the protection of a non-molestation order’.
[4] For the judge the ‘more important allegations’ were, as he found, that in December 1999, because of ‘a very, very difficult emotional situation’ for the
father following the tragic death of a teenage stepson, the father threw a shoe at a light switch but it hit the mother who was standing in that direction. In April 2000, after they had separated, he forced his way into the house, ordered her to make him a cup of tea and pushed a hot tea bag in her face. In June 2000, seeing her with another man, he hit her across the face and chipped her tooth. In July 2000 he entered her house without permission. In August 2000 he was abusive to her. In March 2001 he filmed her at her place of work. The judge concluded:
‘He has sought to use contact as a method of controlling her. If he carries on in this way he will break his link with his son.’
[5] The father made submissions to us in which he sought to challenge those findings of fact made by the judge. Although we listened to him as a matter of courtesy as a litigant in person, we had soon to point out to him that he had not sought to appeal against that decision and that this court was therefore bound by those findings and would treat them as...
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