England and Wales Family Court Decisions (other Judges)

 

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

 

		Before: MISS RECORDER HENLEY

 

IN THE FAMILY COURT Case No. LV16P00543

SITTING AT MANCHESTER

In the matter of the Children Act 1989

Date: 13/09/2016

In the matter of

A (born July 2007)

and

R (born March 2011)

 

BETWEEN:

M

Applicant

-and-

 

F

 

Respondent

 

__________________________________________________________

JUDGMENT

__________________________________________________________

 

 

Representation

 

Applicant - Mrs Ashley (Counsel)

Respondent Father - In Person

 

Introduction

 

1. The Court is concerned with A (July 2007) now aged 9 years old and R (born March 2011) now aged 5 years old. Their parents are the Mother, "M" aged 29 years and the Father, "F" aged 32 years.

 

2. This matter comes before the Court for a Final Hearing in private law proceedings brought by M, with a time estimate of one day. In her application dated 22 February 2016, she applied for two orders; firstly a specific issue order permitting a change of each child's surname and secondly an order terminating F's Parental Responsibility for each child.

 

3. This matter was originally listed before me for trial on 24 ^th August 2016 when it had to be adjourned due to a failure to produce F for attendance at the hearing. I made arrangements to hear the matter today and ensured that a fresh production order was made providing for F's attendance from custody. Originally this was to be by video link but the Court administration were informed yesterday that due to staffing issues at the Prison, they could not facilitate a video link and F would need to be produced in person. An amended production order was made accordingly.

 

4. I give this judgment on an ex temporary basis, having heard evidence and submissions on the same day that it was delivered.

 

Background

 

5. The parents were never married but F acquired Parental Responsibility for each child as a consequence of his name being registered on each child's birth certificate. The parents separated in 2012 following a complaint that F had seriously sexually abused A, then aged almost 5 years old. F was charged with sexual offences as a consequence of this complaint, which involved oral, anal and vaginal rape. F pleaded not guilty but was found guilty, after a trial, of offences of Rape and Attempted Rape of a child under the age of 13 years, the child being his daughter A. A was made to give evidence during the trial by video link and was cross-examined. F was sentenced to a term of imprisonment of 14 years and remains in custody to date. His earliest conditional release date is 13.7.19, his actual release date being 12.7.2026. F last saw the children when A was just under 5 years old and R was 15 months old. R has no memory of his Father. By the time of F's actual release date A will be 19 years old and R 15 years old.

 

6. Both children continue to reside with M at a confidential address. F was served with notice of this application on 3 ^rd March 2016. After initially indicating his ambivalence to the application for change of the children's surnames, he informed the Court on 17 ^th August 2016 that he did not oppose a change of surname and each child's surname was changed by Court order from X to Y on that day. F did however indicate his continued opposition to the termination of his Parental Responsibility and the matter was listed for a contested hearing before me accordingly.

 

 

 

 

Positions of the parties

 

7. M seeks an order terminating F's Parental Responsibility in respect of each child. In her statement dated 19.8.16, she sets her reasons as follows:

(a)     She does not believe that F can contribute towards the current or future welfare of the children

(b)     A has suffered significant harm at the hands of F

(c)     F is unable to exercise parental responsibility for the children whilst he is in custody

(d)    She does not believe that F should have an on going relationship with the children after the significant harm he inflicted upon A

(e)     She is in fear of F attempting to contact her and the children when he is released from custody

(f)      She has changed the children's names and moved to a new location to ensure that F is not able to find her and the children when he is released from prison due to their on going fear of him.

(g)     Her fears regarding F have been heightened by him informing the CAFCASS officer that he intends to pursue a relationship with the children when he is released from prison.

(h)     She is fearful of the effect it will have upon the children should F make an application for contact

(i)       She believes that both children would be at risk of significant harm from F if he were able to exercise his Parental Responsibility in the future and believes that there would be further damage to the family unit if he were permitted to do so.

(j)       She seeks to ensure the future emotional and physical safety of the children for the remainder of their minority.

(k)     She seeks to ensure that the children are able to exercise a peaceful and safe family life both now and in the future.

 

8. F is not represented and attends the hearing pursuant to a Production Order, he strongly opposes the termination of his Parental Responsibility and maintains that he is innocent of the offences of which he has been convicted. When the matter was before me on 24 ^th August 2016 I directed that F must provide me with any questions that he wished to pose to M in writing in advance of today's hearing so that I could take a decision as to which questions could be put. I also directed that I would put any acceptable questions to M on F's behalf to prevent a situation where F was questioning M directly, given that she is particularly anxious and I had already acceded to a request for her to have special measures, in the form of screens, in the Courtroom. F failed to supply any written questions. The direction I made indicated that in the event that F failed to supply questions in this way, he may forfeit the right to ask them. In fact F confirmed today that he did not have any questions for M.

 

CAFCASS

 

9. I have the benefit of a CAFCASS report dated 4 ^th July 2016. In it, the Family Court Advisor Colin Schumacher recommends that F's Parental Responsibility be terminated.

 

10. Within his report Mr Schumacher records the results of enhanced police disclosure about F, which includes two incidents of domestic abuse with M post separation. He records that the Police noted that F was "agitated", "irrational" and "a risk" in 2012. During Mr Schumacher's interview of M she raised concerns about F's abusive and unpredictable behaviour and her fears that upon release, he may try to contact her and the children. He notes that as a safeguard she has moved to a confidential address and makes this application to remove the possibility of him using his Parental Responsibility as a means of finding her. He records that both M and A have received significant therapeutic and professional support and that, according to M, A still recalls the sexual abuse she suffered at the hands of F vividly.

 

11. Mr Schumacher interviewed F, who told him that "he still loves M despite making allegations that she coached A to make allegations of rape against him" and that "he intends on making an application to the Court in order to pursue a relationship with A and R when he is released from prison but that he will accept the children's wishes and feelings if they do not wish to spend time with him."

 

Legal Framework

12. Parental Responsibility is defined by section 3(1) Children Act 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".

 

13. 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. 

 

14. Section 111 of the Adoption and Children Act 2002 [ACA 2002] amended the Children Act 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 Children Act 1989 relating to the cessation of Parental Responsibility.  The amended provisions are as follows:

 

"Section 4(1) Where a child's father and mother were not married to each other at the time of his birth, F 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 ..."

 

15. In Re D (A Child) [2014] EWCA Civ 315, the Court of Appeal considered the concept of Parental Responsibility, acknowledging that "it is not further defined in any enactment and its significance in the Children Act 1989 is as to the contribution to a child's welfare that the status confers on the adult concerned...  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 1989: 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."

 

16. It was held in Re D that 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) Children Act 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 particular case, for example, the factors that the court considers within the overarching question of welfare upon an application for a Parental Responsibility order (the degree of commitment which F has shown to the child, the degree of attachment which exists between F and the child and the reasons of F for applying for the order) may be relevant on the facts of a particular case but are not to be taken to be a substitute test to be applied... An unmarried father does not benefit from a 'presumption' as to the existence or continuance of Parental Responsibility.  He obtains it in accordance with the statutory scheme and may lose it in the same way.  In both circumstances it is the welfare of the child that creates the presumption, not the parenthood of the unmarried father."

 

17. In Re D Lord Justice Ryder reiterated that 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 and not the adult. The status conferred by Parental Responsibility relates to welfare and not the mere existence of paternity or parenthood. 

 

18. Re D involved an unsuccessful appeal to the Court of Appeal in a case in which Baker J had terminated a Father's parental responsibility concluding that the "magnetic factors" in this case were D's emotional needs, the harm he had suffered, and the risk of future harm. He concluded that D's emotional security would be imperiled were F to continue have any further involvement in his life. He found that it would be inconceivable that Parental Responsibility would have been granted if applied for now and that there was no element of the bundle of responsibilities that make Parental Responsibility which F could present or foreseeable circumstances in which he could exercise it in a way which would be beneficial to D.

 

19. In Re W (Direct Contact) [2012] EWCA Civ 999 the Court of Appeal emphasised the importance of parental responsibility as an incident of family life.  At [80] McFarlane LJ said:

 

"Whether or not a parent has Parental Responsibility is not simply a matter that achieves the ticking of a box on a form.  It is a significant matter of status as between parent and child and, just as important, as between each of the parents.  By stressing the 'responsibility' which is so clearly given prominence in the Children Act 1989, section 3 and the likely circumstance that that responsibility is shared with the other parent, it is hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post separation contact than may hitherto been the case."

20. It is within this context that the courts have repeatedly emphasised, and I expressly acknowledge, that in most cases it is in a child's best interests for both parents to have and to exercise Parental Responsibility for the child.   Where however the manner in which a parent chooses to exercise an aspect of their parental responsibility is detrimental to the welfare of the child, the court may prescribe, to whatever extent is in the child's best interests and proportionate, the exercise by that parent of their Parental Responsibility and in appropriate cases, may terminate Parental Responsibility altogether. 

 

21. In H v A (No. 1) [2015] EWFC 58, MacDonald J was concerned with a father who was serving a discretionary life sentence in prison for offences including battery against M, breach of a non-molestation order and driving a burning car into the family home while M and children were there. His fixation on harming the children's mother and his consequent total disregard for the children's welfare meant that they lived in a strictly confidential location. M said that the provision of school reports, even in an anonymised form, would pose too great a risk of their whereabouts being accidentally disclosed to him. M also sought to restrict F's exercise of his parental responsibility by applying for an order to prohibit him from receiving the children's school reports, where all F sought was anonymised 'data' comprising the grades of the children stripped of any information that might identify the current whereabouts of M and the children. MacDonald J, in granting M's application, considered the welfare of the children and the risk of further harm, and considered the impact on M and her ability to meet the children's needs, which might have been impaired by any risk that F would locate her, or by the worry and anxiety associated with a persistent and pernicious fear that her location and that of the children would be revealed to F.

 

22. In considering whether to grant an order each child's best interests are my paramount consideration and I have had regard to the matters set out in the 'welfare checklist' contained in s 1(3) of the Children Act 1989.  I should not make an order unless doing so would be better than making no order at all. 

 

23. It is important to note that, however extreme or exceptional the facts of a particular case, termination of Parental Responsibility is a draconian step.  Any such order made by the court must accordingly be based on objective evidence. 

 

24. I remind myself that Articles 6 and 8 ECHR are fully engaged in this matter and that an order to terminate a Father's Parental Responsibility is a serious interference with his Article 8 ECHR Right to a Private and Family Life. Such an order should only be made if necessary and proportionate and where that interference is properly justified.

 

Evidence

 

25. I have read the Court bundle, which includes the written evidence of M dated 19 ^th August 2016 and a letter from F dated 17 ^th August 2016. Within that letter F confirms "I have always maintained my innocences [sic] with regards to this conviction and have been compiling my appeal over the past years, which is again, a very difficult and complex process, especially in prison without Legal Aid or legal representation."

 

26. I have today heard evidence from M, who was not cross examined by F. I heard from F and gave him to opportunity to address me on any matters that he thought were relevant.

 

27. I heard evidence from Mr Schumacher, the CAFCASS officer. F confirmed that he had no questions for the CAFCASS Officer at the conclusion of his evidence.

 

Welfare analysis

 

28. The facts of this case are exceptional and extreme. It has not been necessary for me to make factual determinations as far as F's conduct is concerned as those matters are well settled as a consequence of his criminal convictions. Notwithstanding F's continued protestations of innocence, which continued today from the witness box and during F's oral submissions, I proceed to determine what is in the children's best interests based upon the facts established by his convictions, which stand, and which have not been the subject of an appeal. Having heard from F, I note that he demonstrated no insight into his offending or the impact that it has had upon M or upon A. I accept Mr Schumacher's opinion, that in the absence of any acceptance of his culpability for these matters F remains a very high risk to each child in so far as their emotional wellbeing is concerned. He also remains at very high risk of reoffending in my opinion, as he has done nothing to address his offending behaviour.

 

29. By virtue of F's conduct, which involved the most heinous of offences, I am satisfied that he has forfeited any claim that he had to holding Parental Responsibility for his children. Parental Responsibility is for parents who can exercise it in the best interests of their children. This Father cannot exercise Parental Responsibility at the current time by virtue of his incarceration in any event but I am satisfied that even if he were not so incarcerated, he would not be able to exercise Parental Responsibility in a way that was in keeping with their best interests. By raping his then not yet 5-year-old daughter, F not only caused her significant harm in the form of sexual abuse at the time, he has also caused long-term significant emotional and psychological harm to her. His actions represent a catastrophic breach of trust. He has seriously breached his parental responsibilities as a parent of her and of her sibling. I am satisfied that his actions have had a devastating impact upon her and upon M, who is the children's primary carer. The impact of F's actions is long term.

 

30. It is incongruous to A's welfare to permit the man who caused her such grievous harm to continue to hold Parental Responsibility for her. I cannot imagine any circumstance in which she would wish him to be able to take decisions about her future or welfare as she matures. It seems to me to be entirely inappropriate to require M to have to consult with F about any matter to do with the upbringing of A or R and I consider that such a requirement would cause unnecessary distress to M, and in turn to the children, who would be likely to suffer the consequences of M's distress whilst sharing a home with her. I note that the CAFCASS officer records the "anxiety and depression" that M has already suffered as a consequence of F's abuse of their daughter. In his opinion, it is "highly likely that the children would have been aware of their mother's low mood at the time and would have been negatively affected by it." M stopped treatment in December 2015 with the agreement of her medical practitioner and now feels able to recover. I am satisfied that should she be forced to engage with F in future as a consequence of their shared Parental Responsibility, this is likely to have a significantly negative impact upon her progress.

 

31. I am satisfied that should F continue to hold Parental Responsibility for either of the children, there is a real risk that he would use it to locate them upon his release. I have reached that conclusion based upon his stated future intentions as expressed to the CAFCASS officer. F told Mr Schumacher that he intends to pursue a relationship with the children upon his release. Although F today expressed some ambivalence about this, I find on the balance of probabilities that, given the opportunity, he would seek them out and wish to have contact with them. I am further satisfied that the mere prospect of this hanging over M's head is likely to cause her unnecessary anxiety and fear which would not only have a negative impact upon her but upon the children. M and the children should not have to live in fear of F finding them. I consider that the applications brought by M - both to change the children's surnames and to terminate F's Parental Responsibility are entirely appropriate and child focussed. These applications, when taken together, have the effect of preserving the children's safety and security, permitting them to live without the constant and pervasive fear that F may locate them. They are already living at a confidential address. I hope that these practical and sensible steps taken by M, permit A to live in an environment in which she is not constantly reminded of the harm that she has suffered. I note M's oral evidence that sadly A remembers everything that happened to her to this day. The change of surname allows each child the protection of some degree of anonymity, free from association with F, who's offences were well publicised in the local media and are available for anyone to find should an internet search be undertaken.

 

32. I have considered whether any less draconian step than terminating Parental Responsibility entirely could be taken to achieve the same end, and specifically whether I could make a series of specific issue orders to restrict F's exercise of Parental Responsibility, but have concluded that there is not likely to ever be a time when he should be permitted to exercise Parental Responsibility for the children and as such consider that terminating it entirely is a proportionate and necessary step. This is not a case in which the harm suffered by A or the risk of harm to the children is likely to reduce in future.

 

33. A has a high therapeutic need which is likely to continue into the future. She has already embarked upon and completed a course of play therapy, which has reached a brief hiatus to give her an opportunity to digest the content of the work. Mr Schumacher informed me that an open door policy remains in place for her to access further treatment. I am satisfied that she needs to be given the optimal opportunity to recover from the trauma that she has suffered. The CAFCASS officer describes the impact of the abuse upon her as follows, "A's memories of the horrific way that she was abused by F will have lasting ramifications for her emotional wellbeing and will likely impact upon her future relationships with family and friends. M will have to monitor and support A through her childhood as she becomes increasingly aware that she is a survivor of sexual abuse." I am satisfied that it is not in A's best interests for F to be permitted to undermine her progress in any way. For therapeutic input to stand its best prospect of success it will need to be delivered in circumstances in which she feels safe and secure. Such feelings of safety and security may well be jeopardised should she have cause to fear that F will locate her. Removing his Parental Responsibility reduces the prospect of this and, I hope, will be of some comfort to her. Having inflicted such terrible harm to her it would be quite wrong for F to be entitled to access information about her, about her whereabouts or her progress. The prospect of this for A risks causing her further emotional and psychological harm.

 

34. I am satisfied that had F not had Parental Responsibility, he would not today be awarded it. He does not fulfil the criteria for it. I accept the opinion of the CAFCASS officer in this regard - F does not have a relationship with either of the children and therefore there is no attachment between them, and he has demonstrated no appropriate commitment to the children. It is the opinion of the CAFCASS officer that F's "motivation for opposing the application to terminate Parental Responsibility is likely to be motivated by control rather than a desire to enhance the children's happiness." I agree. I am satisfied that the continuation of this status carries a real risk of significant harm to each of the children. It would be inconceivable that Parental Responsibility would have been granted if applied for now. There is no element of parental responsibility, which F could now or in the foreseeable future exercise in a way, which would be beneficial to the children. Parental Responsibility is not a parent's right; it is a responsibility to be exercised in the child's best interests, not in the parent's. I, like Mr Schumacher, can think of no benefit to the children whatsoever of this father continuing to hold Parental Responsibility for either of the children.

 

35. Having heard from M and Mr Schumacher, I am satisfied that M is meeting all of the children's needs appropriately and is well equipped to do so in future. Indeed F accepted in evidence that she was a good Mother to the children and that he had no concerns about her ability to meet their needs. I am satisfied having heard from Mr Schumacher today that M is able to access and engage with the necessary professional support required to assist her to meet the children's enhanced emotional needs which arise from the circumstances pertaining to F's conviction and behaviours. I am further satisfied that, when appropriate, such support will include life story work for R, who at the present time is unaware of these issues or of his paternity.

 

36. I make clear that the "magnetic factors" in this case are the children's emotional needs, the significant harm that A has undoubtedly suffered, and the risk of future harm to her and to R, which I consider to be considerable. I have reached a clear view that the emotional security of each child would be imperiled if F were to continue have any further involvement in their lives by reason of holding Parental Responsibility for them.

 

37. I do consider that making an order to terminate F's Parental Responsibility is better for the children than making no order at all in this case, the making of no order would have the effect of permitting him to continue to hold Parental Responsibility in circumstances in which it is wholly inappropriate for him to do so. I consider that terminating F's Parental Responsibility is proportionate to the harm that A has suffered and that both children are at risk of suffering, albeit that I recognise that it is a draconian step to take.

 

38. I therefore make an order terminating F's Parental Responsibility in respect of each child.