Terminating Parental Responsibility - Mission: Impossible?

22 Apr

In Re D (A Child) [2014] EWCA Civ 315, the Court of Appeal (Arden, Gloster, and Ryder LJJ) considered this issue of the removal of parental responsibility. Before proceeding further, it’s important to note the courts can only terminate a father’s parental responsibility if he was not married to the mother at the time of the child’s birth and he acquired parental responsibility by virtue of section 4(1) of the Children Act 1989. That section provides that fathers acquire parental responsibility if:
(a)    The unmarried mother and father register or re-register the child’s birth pursuant to paragraphs (a), (b), and (c) of sections 10(1) and 10A(1) of the Births and Deaths Registration Act 1953.
(b)    The unmarried mother and father enter into a parental responsibility agreement.
(c)    The court makes a parental responsibility order.

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Family


In Re D (A Child) [2014] EWCA Civ 315, the Court of Appeal (Arden, Gloster, and Ryder LJJ) considered this issue of the removal of parental responsibility. Before proceeding further, it’s important to note the courts can only terminate a father’s parental responsibility if he was not married to the mother at the time of the child’s birth and he acquired parental responsibility by virtue of section 4(1) of the Children Act 1989. That section provides that fathers acquire parental responsibility if:
(a)    The unmarried mother and father register or re-register the child’s birth pursuant to paragraphs (a), (b), and (c) of sections 10(1) and 10A(1) of the Births and Deaths Registration Act 1953.
(b)    The unmarried mother and father enter into a parental responsibility agreement.
(c)    The court makes a parental responsibility order.

Currently mothers and, if they were married to the child’s mother at the time of the child’s birth, fathers only lose parental responsibility if the child dies, is adopted, or reaches the age of 18.

The facts of Re D are these: D’s mother had 2 children from a previous relationship. She met D’s father and they entered into a relationship but never married. D was born in 2004 and both mother and father were named as his parents on his birth certificate. Father therefore acquired parental responsibility for D by virtue of section 4(1)(a) of the CA 1989.

In 2009, father pleaded guilty to sexual offences against D’s half-siblings. He was sentenced to 48 months imprisonment and was released in June 2011.

Immediately upon his release, mother applied for the termination of father’s parental responsibility for D. Father made a cross-application for a specific issue order which, if granted, would have required mother to provide father with an annual report about D’s progress. In doing so, father made it known that he did not intend to apply for a contact order with D (whom he had not seen since D was 4 years old).

At first instance, Baker J held that D had suffered serious emotional harm as a result of father’s abuse of his half-siblings and that he was a risk of further emotional harm from father. Father’s application was dismissed.

Father appealed on the basis that Baker J had failed to:
(1)    Distinguish Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048 having regard to the Human Rights Act 1998 and the changing social norms since Re P was decided.
(2)    Consider whether mother had proved the allegation that father was a sexual recidivist.
(3)    Make a proportionate order or to take into account policy considerations that such applications should not become, ‘a weapon in the hands of a dissatisfied mother.’
Father also appealed on the additional ground that, as an unmarried man, his Art 8 and 14 rights had been violated. He was denied permission to argue that point on appeal as a result of the decision in Smallwood v. UK (29779/96)(1999) 27 EHRR CD 155, in which the Commission held the difference in treatment between mothers, married fathers, and unmarried fathers in the context of the jurisdiction of the court to make orders terminating the parental responsibility of an unmarried father is not a violation of either Art 8 or Art 14. Pausing there, I wonder whether the ECtHR would reach that same conclusion today in light of the section 4(1)(a) CA 1989 and the societal changes that have undoubtedly taken place since 1999.

In November 2013, the Court of Appeal heard argument and, on 26th March 2014, Ryder LJ (with whom Arden and Gloster LJJ agreed) delivered a judgment in which he dismissed father’s appeal on the following bases:
(1)    Whatever the change in social norms since Re P, the concept of the paramountcy of the welfare of the child had remained intact as the governing principle to be applied. Re P could not be distinguished on the basis that father had not inflicted harm directly on D. father had inflicted devastating emotional harm on the whole family including D, and father could not be said to be capable of exercising his parental rights with responsibility, Re P followed. It was well established that the provisions of the Children Act 1989 were compliant with the European Convention on Human Rights. To the extent that differences existed in the statutory treatment of unmarried and married fathers, that difference should be construed as justified in accordance with the decision in Smallwood v United Kingdom. Baker J had articulated the correct test and considered the key issues. He had utilised the welfare checklist and reminded himself of the interference with Art 8 rights which needed to be justified. His conclusion that, despite the need of every child to have a relationship with each parent wherever possible, D’s welfare would be imperiled if father had any involvement in his life was unassailable on the facts and as a value judgment within a careful welfare analysis (paras 18-19, 21, 25-26).
(2)     M had satisfied the burden of proof of facts relating to father’s alleged sexual recidivism (para 27).
(3)     The judge expressly considered the proportionality of the order. Since Re P had been decided, there had been no reported decisions of such an application becoming “a weapon in the hands of a dissatisfied mother” and the application was not being used as such in the instant case. The change in social conditions over the years since Re P had not led to any increase in such applications. There was nothing to suggest that there was a need to enhance the court’s vigilance in that regard (paras 31-32).

Graeme Harrison

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