Re P (Parental Responsibility)

JurisdictionEngland & Wales
JudgeLord Justice Ward,LORD JUSTICE WARD,LORD JUSTICE MILLETT
Judgment Date19 February 1998
Neutral Citation[1998] EWCA Civ J0219-23
Judgment citation (vLex)[1997] EWCA Civ J0415-1
Docket NumberCCFM1 97/0006/F
CourtCourt of Appeal (Civil Division)
Date19 February 1998

[1997] EWCA Civ J0415-1

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CHELMSFORD COUNTY COURT

(HIS HONOUR JUDGE GROVES TD RD)

Royal Courts of Justice

Strand

London WC2

Before:

The Master of the Rolls

(Lord Woolf)

Lord Justice Millett

Lord Justice Ward

CCFM1 97/0006/F

In the Matter of
and
Re: P
(Minors)

MR M BATCHELOR (Instructed by Atter Mackenzie & Co, Worcestershire, WR11 4RY) appeared on behalf of the Appellant/Father.

MISS C SHELDRAKE (Instructed by Hill & Abbott, Chelmsford, CM1 1XH) appeared on behalf of the Respondent/Mother.

1

LORD WOOLF, MR: I will ask Lord Justice Ward to give the first judgment.

LORD JUSTICE WARD
2

The appellant in this case is a man aged about 38 or 39 who is presently a category B prisoner. For present purposes it is sufficient to recite only that in about April 1989 he was sentenced to a term of eight years in prison for robbery. In July 1989 he was sentenced to a term of 15 years for some other robbery to be served concurrently with his first sentence. Finally, in March 1994, for robbery committed whilst on home leave, or whilst having absconded during home leave, a further sentence of 15 years' imprisonment has been imposed upon him. The appellant had assumed an alias and is known under that other name in prison. He has some hopes of release, perhaps in 1998 or 1999, although that hope may be optimistic, and his earliest date for release otherwise may be postponed as far as 2004.

3

The appellant had met the respondent in the appeal in about May 1989 and had begun to live with her in August of that year. They never married. She became pregnant and was delivered of their first child, a boy, JM, born on 7 June 1989 at a time when, as I have indicated, the father was already in prison. The mother registered the birth of the child with the surname of the father.

4

The boy was taken to see his father in prison, sometimes by the mother and sometimes by the paternal grandparents or the paternal family. The mother seems to have had a sufficiently close relationship with them to have stayed with them from time to time.

5

In about 1991 the father began to be released on home leave. During those periods of freedom he resumed his relationship with the mother and she again became pregnant. But, and this is not insignificant in the history of this case, during that period of home leave the father committed the further offence for which he has received a further sentence of imprisonment.

6

The second child was a little girl, C, who was born on 4 July 1993. Her birth was again registered with the father's surname. By now the relationship was suffering the strain, not surprisingly felt by the mother who had been badly let down by the further offending of the father, and the beginnings of the separation between them had taken place.

7

The mother significantly reduced the contact she was affording the father to the children by the Spring of 1995. She emphasised the wish for a fresh start by moving back to the county of her origin. As part of that new life, she decided in November 1995 to change the children's names by deed poll by removing the father's surname and assuming her own maiden name for them. That provoked applications by the father for various orders under Section 8 of the Children Act 1989, firstly for contact to the two children; secondly, for a parental responsibility order; and, thirdly, for a specific issue order, which does not appear clearly defined on the papers but which I have taken to be an order requiring the mother, in effect, to cause the children to change name yet again and revert to their father's surname.

8

The matter was heard and determined by His Honour Judge Groves on 6 December l996. He ordered that contact should take place on no fewer than seven occasions per annum at such times as were to be agreed between the parties, it being to their credit that that part of the order was for all practical purposes agreed between them. On the contested aspects of the application, the judge made no order for parental responsibility and no order that the surnames used by the children should be changed. He gave leave to appeal and it is that appeal which we have to decide today.

9

The judge approached the matter in this way. Dealing firstly with the parental responsibility issue, he observed what is quite obvious, that whilst the father was at large he played a very limited role, if any, in the children's lives. At page 2 of his judgment, he observed that, having returned to the family on home visit he:

"….spent that time, unfortunately, committing further crimes resulting in an extended prison sentence. He has played little or no part in the lives of the children, apart from having contact with the children during the time that he has been in prison."

10

He then directed himself to the authorities. He referred to a decision of mine in D v Hereford and Worcester County Council [1991] 2 All ER 177, where, although not dealing with the Children Act application, I ventured to put a test in the most general terms of whether or not the father had behaved, or would behave, with parental responsibility for the child.

11

The Court of Appeal first looked at this in 1989 in the much cited case of Re H (Illegitimate Children: Father: Parental Rights) (No 2) [1991] 1 FLR 214 at 218F where Balcombe LJ suggested that it might be appropriate to ask about the extent to which the father had shown responsibility. He established a test in these terms:

"….the court will have to take into account a number of factors, of which the following will undoubtedly be material (although there may well be others, as the list is not intended to be exhaustive):

(1) the degree of commitment which the father has shown towards the child;

(2) the degree of attachment which exists between the father and the child;

(3) the reasons of the father for applying for the order."

12

His Honour Judge Groves correctly pointed out and emphasised that this was not exhaustive and that an application of this kind was in any event governed by the overall paramount need to put the welfare of the children at the head of the list of factors to which to have regard.

13

The judge was referred to other decisions of this court which I tried to summarise in the case of Re S (A Minor) (Parental Responsibility) [1995] 2 FLR 648. In the course of that summary and trying to trace the development, as the courts have developed the Section, I confirmed that parental responsibility orders were essentially orders which conferred status on the unmarried father, and that the practice had developed where good reason had to be advanced why orders should not be granted in a committed father's favour.

14

I cannot see any error in the way the judge directed himself as to the law. In applying those criteria, he said:

"Turning to the instant case: first of all, the attached degree of commitment. Sadly, it has to be said, this father has shown very little commitment to his children, especially during the time that he was afforded his liberty on home leave by committing further crimes. It is sad, but there it is. He has virtually only demonstrated his commitment to the extent of wanting to have contact with the children; secondly, the degree of attachment. With the best will in the world I have to say that it must be minimal in the case of [C]. I think that if I, as I must do, consider s.1 and indeed the welfare check list it would be rather unfortunate, in fact, I think it would be improper for the Court to take the view that you can make a parental responsibility [order] in respect of one child and not in respect of another. In the case of [C] he has seen [her] for a total of 8 hours in 3 1/2 years. The degree of attachment there must be very small.

Similarly in the case of [JM]. Whilst his memory will be better, because he is older, the degree of attachment in his case would also not be very strong."

Turning to the reasons for applying for the order, the father, to his credit, has virtually repeated when questioned by Mr Crawford [solicitor for the mother] what he told the Family Court Welfare Officer. He wants to be provided with information. He told them he wants the children to know him and know who he is, to know that he is their father. He wants to see that the right choices are made and decisions are made to see that they get the best."

15

The judge then came to the conclusion that:

"But after taking into account s.1 and considering the three matters that I have to consider, sadly I have to say that at this stage it would not be right for me to make a parental responsibility order, because of the father's particular circumstances. I think the right order would be to make no order in respect of that application.

Of course I agree with [the mother's solicitor] that the application can be renewed if the father is moved elsewhere. If he does obtain his liberty early on, well then, of course, he is entitled to renew it."

16

Mr Batchelor attacks that judgment in the most moderate and therefore persuasive way. I pay tribute to his submissions. He submits generally that the thrust of the authorities which I have cited, and in Re: C (Minors) (Parental Rights) [1992] 1 FLR 30, is such as to set a low hurdle for the success of the unmarried father and this judge has erred in raising the hurdle to a fence of a Bechers Brook proportion. I understand that submission and I see the attractive force of it, but it does need to be more carefully analysed. Here the learned judge applied himself to the standard tests and concentrated to a large extent upon commitment and attachment.

17

In viewing the father's commitment, he took into account that...

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