Neutral Citation no.  NIFam 22
Judgment: approved by the Court for handing down
(subject to editorial corrections)
I have prepared this judgment in an anonymised form. Nothing must be published which may lead to the identification of the children involved in this case.
The applicant TB is the unmarried natural father of N born on 8 June 1987, K born on 20 December 1989, T born on 10 September 1992 and TM born on 28 July 1994. The respondent is a Community and Hospitals Trust which I do not propose to name and which I shall refer to as "the Trust".
TB seeks to acquire parental responsibility in relation to all four children pursuant to Article 7 of the Children (Northern Ireland) Order 1995 ("the 1995 Order").
The family background to this application arises out of the relationship of the mother of the children S (now deceased) and TB. The evidence of the Trust was that in her teenage years S and TB developed a friendship which according to TB and extended family members was at times turbulent. The couple had the four children mentioned above. TB did not live with the family on a permanent basis. In his statement of evidence dated 18 June 2001 he describes how he stayed frequently during the week with S, that he provided for the family in terms of clothing, food, activities, church attendances and purports to have been a significant person in the children's lives. There is no issue as to his paternity of the children following DNA tests in July 1997. TB was married at the time of his relationship with S.
On 14 March 1996 S, TB and three of the children were involved in a road traffic accident in Belfast which tragically resulted in the death of S. The Social Services became involved in discussions concerning placements for the children which occurred with members of the children's maternal extended family. The relationship between TB and these family members became acrimonious and this remains the case. Because of the nature of the relationship between TB and the maternal extended family members, TB was denied contact with the children following their mother's death and he successfully applied to have the children made wards of court on 21 August 1996. The respondent in this case became involved to ensure the children's interests were being met and contact with the children was reinstated following direct work with the children.
N and K attended supervised access with their father until March 1997 when they expressed the view that they did not wish to attend in future. They have since seen their father at Looked After Child Reviews but have consistently said they do not want contact. They respond to their father's correspondence and write thank you letters in respect of gifts he sends them. TB still has supervised contact with T and TL once per month. The children have had several placements with relatives, all of which eventually broke down and they are now all in foster care. It is the Trust's plan to have N and K adopted. T and TL are in long term foster care and it is proposed that they remain with their current foster carers. To date there has been a sad history of disputes between TB and the Trust concerning the children's care resulting in complaints against the Trust which, in July 2000 were adjudicated under the Children's Order and representatives procedure. There has been continuing hostility between TB and members of the extended family. In April 1997 T and TL alleged that K had been sexually abused by TB. In March 1998 T alleged sexual abuse by TB. The RUC have investigated these matters but no criminal proceedings were instituted.
Illustrations of the acrimonious relationships which have bedevilled this case are seen in the following extracts from the evidence which was before me:
(a) SL the social worker from the Trust interviewed TB on 25 September 2000 to ascertain his perspective on the matter of contact. TB told her that he was unable to respect the wishes and feelings of N and K who did not wish to have contact with him. Whilst TB accepted that he had signed a statement of evidence before the court respecting the children's wishes, he implied that his solicitor had amended this and he was unable to accept it. He went on to indicate that he firmly believed that family members had negatively influenced N and K against him. He remained opposed to the children's contact with the extended family and, according to the social worker, he was threatening in his description of how he would deal with the children's aunt about whom he was particularly vitriolic. He looked forward to a Looked After Review on 5 October 2000 to provide the opportunity to ask the children questions and received answers about their views. The comment of the social worker was that "he appears unable to accept that the children may perceive such questioning in an open meeting as a direct challenge and they may not respond according to TB's expectations which would lead to further frustration and resentment on both parts".
(b) As a result of these acrimonious exchanges, it is clear that N is adamant he will not attend face to face contact with his father with the exception of a Looked After Child Review. He is willing to correspond with his father by letter but not by telephone. In respect of TB's application for parental responsibility, N indicated his hope that this would not affect his current contact arrangements with the extended family. He expressed concern that TB would try to stop his visit to his relations, especially his maternal aunts if he obtained parental responsibility. N is clearly a bright young man who is currently undertaking GCSEs at a local grammar school.
(c) K informed the social worker that she did not wish to avail of contact visits with her father TB. Whilst she was willing to respond to correspondence by letter with TB she was not prepared to accept telephone calls. The conclusion of the social worker was that it was a combination of her mother's death, changes in her placements, her perception of TB's role within the family and her attitude towards him which have accumulated and resulted in her decision not to see her father. She has also disclosed incidents of alleged sexual abuse against him. She will not participate in any attempt to renew contact with her father. Both T and TL seem to enjoy their visits with TB but they have no real understanding of the issue of parental rights.
(d) On 23 October 2000 TB allegedly contacted Social Services and advised that "someone will die" if the children are placed for adoption.
(e) On 15 November 2000 TB telephoned T and TL's foster carers five times over the course of the weekend. He was courteous to the foster carers but the number of calls impinged on the family's routine.
(f) On 15 February 2001 K's foster carer advised that TB had forwarded a letter to K stating "he would never stop fighting to get her back". He was abusive to the foster carer when she advised him to contact the Social Services if he wished to speak to K. As a result of abusive calls/inappropriate comments from TD the foster carer changed her telephone number.
(g) On 9 March 2001 TB challenged T and TL during the contact about adoption. He was aggressive in his manner and the children were visibly upset. T cried during the visit. On the return home both children were distressed and confused.
(h) On 13 March 2001 at a Looked After Children Review on T and TL, TB was abusive to social workers and the foster carers.
(i) On 28 March 2001 at a Looked After Children Review on N and K, N and K refused to attend and on 5 April 2001 N indicated to his foster carer that he wants the court process to end.
The Guardian Ad Litem, in its very helpful report of 3 January2001 records:
"TB wishes to acquire parental responsibility in order to respond to the Trust's application to have N and K adopted. In discussion he indicated that parental responsibility would help to remove (the maternal aunt) from the children's contact or force the Trust to have it supervised. He would view the current application as an opportunity to have the allegations against him disproven. In addition TB indicated that parental responsibility would allow him full attendance at LAC reviews, allow him to a say with release of any monies coming to the children as a result of their mother's death. It is likely that TB would hope to gain an increased say in the children's care if granted parental responsibility."
TB in his statement of evidence, which I have read in full, records at paragraph 11:
"The reason I would like to granted parental responsibility is so that I could be involved in decisions about their lives and have a say in where they would go to church or school and so that I would be notified if they were changing address or going on holiday outside the jurisdiction. I understand that N has stopped going to church and although he is now at an age to make his own decisions himself I would like to feel that he might return to church later as I was always keen that the children attended church. I would also like to be involved in any decisions as to who the children are staying with so that I would know that the children are being properly looked after. The children have been moved on a number of occasions in the last five years and I feel that it is important that they receive a stable and as happy a home life as is possible in the circumstances."
In addition to his statement of evidence there is a statement of evidence from EH who is the godfather of T and knew the children's mother for fourteen years before her death in 1996. She gives evidence that TB was always committed to the children and always did his best for them playing an active role as a father, carer and provider for them.
Legal principles governing this case
1. Parental responsibility is defined in Article 6 of the 1995 Order. It reads as follows:
"6.-(1)In this Order 'parental responsibility' means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child in his property.
(2) It also includes the rights, powers and duties which a guardian of the child's fortune or estate … to act would have had in relation to the child and its property.
(3) The rights referred to in paragraph (2) include, in particular, the right of the guardian to receive or recover in his own name, for the benefit of the child, property of whatever description and wherever situated which the child is entitled to receive or recover."
A number of obvious examples of parental responsibility would include consent to medical treatment, choice of schools, disciplining and religious formation. It is important to appreciate however that the Children's Order emphasises the responsibilities of parenthood and does not describe these responsibilities as "parental rights". The distinction is significant.
The acquisition of parental responsibility is dealt with under Article 7 in the following terms:
"7.-(1)Where a child's father and mother were not married to each other at the time of his birth –
(a) the court may, on the application of the father, order that he shall have parental responsibility for the child; or
(b) the father and mother may by agreement (a parental responsibility agreement) provide for the father to have parental responsibility for the child."
In terms therefore acquisition of parental responsibility is automatic for a mother and a father married to the mother at the time of birth but the avenues open to an unmarried father are somewhat more constrained.
The seminal case in dealing with applications by an unmarried father for a parental responsibility order (hereinafter called "PRO") is found in the three point test formulated by Balcombe LJ in Re H (Minors) (Local Authority: Parental rights) (No. 3) (1991) Fam. 151. These points have been so often repeated that it is unnecessary for me to quote in extenso the three criteria other than to state that they are:
(a) The degree of commitment the father has shown to the child.
(b) The degree of attachment between the father and the child.
(c) The reasons for applying for the order.
These factors are not exhaustive and are subject to the overarching welfare principle in Article 3(1) of the 1995 Order and the checklist in Article 3(3). Moreover whilst the three requirements set out by Balcombe LJ are undoubtedly the starting point for the making of an order it is clear that it was never intended that they be the only relevant factors in considering a parental responsibility order. In Re H (Parental Responsibility) 1998 1 FLR 855, 859, Butler-Sloss LJ said:
"In any event such an approach would be contrary to Section 1 of the Children Act which applies to parental responsibility orders and the welfare of the child is therefore paramount. The court has the duty in each case to take into account all the relevant circumstances and to decide whether the order proposed is in the best interests of the child. Of course it is generally in the child's interest to know and have a relationship with his father but the appropriateness of the order has to be considered on the particular facts of each individual case. If, reviewing all the circumstances, the judge considers that there are factors adverse to the father sufficient to tip the balance against the order proposed, it would not be right to make the order, even though the three requirements can be shown by the father."
Illustrations of this abound. In Re P (Parental Responsibilities) (1998) 2 FLR 96 the Court of Appeal in England held that parental responsibility was properly refused where the court was satisfied that the father was likely to make an improper or inappropriate use of it. At page 107H, Hirst LJ said:
"Clearly where a father has shown commitment to a child, has a good relationship with a child and has sound and genuine reasons for wanting parental responsibility, an order granting him that status will not usually be refused simply because, through hostility to the child's mother or an excess of zeal, he may seek to exercise parental responsibility inappropriately. In such a case, any inappropriate exercise of parental responsibility can be controlled by prohibited steps orders or orders for supervised contact.
Thus, in the instant case, if the father's reasons had been genuine, and if the only factor to be weighed against him was the fact that he pestered P's school, the evidence shows that such behaviour can and has been controlled by undertakings from the father in the nature of a prohibited steps order, and in these circumstances, we think it likely that the judge would have made the order.
Plainly however a father's motivation for applying for a parental responsibility order is what the judge assesses it to be, not what the father thinks it is. Accordingly, where the judge finds that a father's reasons for wanting a parental responsibility order are, in Ward LJ's words 'demonstrably improper and wrong', or where, as here, the judge makes a finding of fact that the father intends to use a parental responsibility order for improper or inappropriate ends to try to interfere with and possibly undermine the mother's care of the child, then clearly the court retains a discretion to refuse a parental responsibility order even if part of the father's likely abuse of the order can be contained by prohibited steps orders under Section 8 of the Children Act 1989. In our judgment it is the element of irresponsibility of the father's behaviour, or his abuse or likely abuse of parental responsibility which may disqualify him."
More recently in Re M (Contact: Parental responsibility) 2001 2 FLR 342, Black J adopted these principles to cover circumstance where the nature of parental responsibility order was likely to be misunderstood and inappropriately used to justify interference. Although the father had shown commitment to his child over the whole of her childhood, was attached to her, and his motivation in applying for parental responsibility order was ultimately for recognition of a status with her, nonetheless these three factors were not the only relevant ones and in that case the court held that the father and his family would have seen the parental responsibility orders providing them with rights to intervene in the girl's life. The predicted misuse of such an order would continue the stress on the mother and potentially undermine her ability to care properly to the child.
I do not believe that the principles that emerge from these recent authorities are in any way a departure from the basic principle set out in Re C and D (Contact and parental responsibility) 1998 1 FLR 392 at page 397C where Ward LJ said:
"… It should be understood by now that a parental responsibility order is one designed not to do more than confer on the natural father the status of fatherhood which a father would have when married to the mother. There is also a sad failure fully to appreciate, when looking at the best interests of the child (which are paramount in this application, as elsewhere) that a child needs for its self esteem to grow up, wherever it can, having a favourable positive image of an absent parent; and it is important that, wherever possible, the law should confer on a concerned father that stamp of approval because he has shown himself willing and anxious to pick up the responsibility of fatherhood and not to deny or avoid it."
Although therefore the threshold may be low in order to satisfy the criteria for parental responsibility orders in the case of an unmarried father, it does not extend to allow a father to undermine those who are caring for the children or to intervene in matters of daily management of a child's life to override proper decisions being taken by the carers. The court has to ask whether a father is responsible enough and, if not, look at his ability to change for the better. Commitment and attachment are not sufficient criteria on their own. The protection afforded to children in care whereby a Trust has the power to determine the extent to which a parent of a child may meet his parental responsibility pursuant to Article 52(3)(b) of the 1995 Order is in my opinion insufficient protection to merit the granting of a parental responsibility order without more.
I am mindful that this area of law is the subject of the exercise of legislative intention and the Family Law Bill is in draft form and makes further provision for the acquisition of parental responsibility under Article 7 of the Children (Northern Ireland) Order 1995. As presently drafted this would result in an unmarried father acquiring "parental responsibility", inter alia, when registered as the child's father in addition to the present provisions. I do not believe that the imminence of that legislation has any effect on this particular case given its facts.
B –v- UK (2000) 1 FLR 1 is a decision of the European Court of Human Rights which rejected a complaint that Section 2 of the Children Act 1989 fell foul of Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 on the basis that it discriminated unfairly against men in denying automatic parental responsibility to a married father. The court held that the complaint was inadmissible as it was an objective and reasonable justification for the different treatment of mothers and fathers. This justification lay in the enormous range of involvement that the father might have in the child's life, from being a complete stranger to a fully committed parent.
Having considered all the facts in this case I have come to the conclusion that the history of this father's involvement with these children points to his main motivation in mounting this application being to undermine the authority of the Trust and the current carer of these children and to prevent adoption. I do not doubt his commitment and I accept that there may be a large measure of attachment on his part. However his behaviour has evidenced an irresponsibility calculated to interfere with the daily management of these children which is contrary to their best interests. He is clearly not attuned to advice or guidance from others as to the best interests of these children. I fear that a parental responsibility order in his favour would be likely to be misunderstood by him and used to justify further unwelcome and inappropriate interference in their lives. It is incumbent upon the courts increasingly to ascertain and duly take into account children's own views and wishes consistent with Article 12 of the UN Convention on the Rights of the Child 1989, the European Convention on the Exercise of Children's Rights 1996 and Article 3(3)(a) of the 1995 Order. N and K are clearly old enough to have formed meaningful wishes and feelings and I think they have to be taken into account as one factor in this matter. The behaviour of the father in this instance has I believe contributed to their present views. It is but one more result of his irresponsible behaviour and a clear indication of the danger that would lie in the wake of an order in his favour being granted in this instance.
I therefore refuse the application.