B e f o r e :
LORD JUSTICE MUSTILL
and
MR JUSTICE WAITE
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(Transcript of the Association of Official Shorthandwriters Limited, Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London, WC2A 3RU.)
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MR ALLAN LEVY, Q.C., and MISS CAROLINE LESTER, instructed by Messrs Anthony Gold, Lerman & Muirhead, appeared for the Appellant (Applicant).
THE RESPONDENT (Respondent) did not appear and was not represented.
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HTML VERSION OF JUDGMENT
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LORD JUSTICE MUSTILL: This appeal is brought by the natural father of two illegitimate boys against an order of Judge Main, Q.C., in Guildford County Court on 19th February 1991 standing over generally, with liberty to restore, his application for a parental rights order ("PRO") under section 4 of the Family Law Reform Act 1987. The adjournment was directed upon the basis that the PRO application would be reconsidered a year later, after a court welfare officer's report had been filed. On the face of it, an appeal against a simple direction of that kind would scarcely be maintainable, because decisions on administrative questions, such as whether or not to adjourn a case for further report, are essentially matters of case management for the judge. The appellant contends, however, that the judge's decision in the present case, when the reasons which he gave for it are analysed, amounted in fact to a full and concluded determination of the PRO application, and to a determination that was moreover misconceived in law. As for the purported adjournment order, that is attacked as being inherently misconceived since there was (by definition) nothing to adjourn once the issue had been decided; or alternatively on the ground that the judge reached the adjournment decision of his own initiative without hearing the views of either party as to whether this was a case in which a decision should be deferred.
We will deal first with the law applicable to PRO applications. The right of a natural father of an illegitimate child to apply for a declaratory order giving him a legal status approximating to that of a married father was conferred by the Family Law Reform Act 1987, which (so far as relevant) was brought into force on 1st April 1989. Section 4 of the Act reads as follows:
"4.-(l) Where the father and mother of a child were not married to each other at the time of his birth, the court may, on the application of the father, order that he shall have all the parental rights and duties with respect to the child.
(2) Where the father of a child is given all the parental rights and duties by an order under this section, he shall, subject to any order made by the court otherwise than under this section, have those rights and duties jointly with the mother of the child or, if the mother is dead, jointly with any guardian of the child appointed under the 1971 Act.
(3) An order under this section may be discharged by a subsequent order made on the application of the father or mother of the child or, if the mother is dead, any guardian of the child appointed under the 1971 Act.
(4) This section and the 1971 Act shall be construed as if this section were contained in that Act."
The discretion given by that section to the court to grant or withhold a PRO application is cast in the widest terms, and there are no indications within the statute itself of any particular factors to which the court is specifically required to have regard. An indication was given by this court recently as to what three of those factors might be: namely, the extent of a father's commitment, the state of his current relationship with the children, and his reasons for applying (re "H" [1991] 2 W.L.R. 763 per Balcombe L.J. at page 768).
This appeal has required us to consider another possible factor, namely enforceability. The question can be posed in this way: is the court, when considering a PRO application, entitled or bound to take into account the fact that under the circumstances at the date of the application one or more or all of the parental rights may be valueless in practice because they are incapable of being exercised by force of circumstance or by order of the court?
Looking at that question as one of first impression without reference to authority, we would think that the answer must be "yes". The enforceability of the rights which he is being invited to confer is something that any judge would be entitled and bound to regard as relevant to the exercise of his discretion. Enforceability is not, it is true, one of the factors expressly mentioned in the list we have quoted from re "H" (supra), but we think that its relevance was tacitly recognised. The principal ground for allowing the appeal in that case was that the judge had ruled that (having regard to the compendious reference in section 4 to "all the parental rights and duties") he was bound to refuse a PRO unless all the parental rights would be incapable of being enforced by the father if an order was made. The court ruled that such a construction of the Act was unduly restrictive. There was no suggestion that the court regarded enforceability as something that the judge should not have been considering at all.
Given, therefore, that the prospective enforceability of parental rights is a relevant consideration for a judge deciding whether or not to grant them, there is, in our judgment, nothing in the Act to suggest that it should be an overriding consideration. It would be quite wrong, in our view, to assume that just because few or none of the parental rights happen to be enforceable under conditions prevailing at the date of the application, it would necessarily follow as a matter of course that a PRO would be refused. That can be illustrated by looking as the legislation clearly requires one to look - at the position of a lawful father in analogous circumstances. Conditions may arise (for example in cases of mental illness) where a married father has regretfully to be ordered, in effect, to step out of his childrens' lives altogether. In such a case his legal status as a parent remains wholly unaffected, and he retains all his rights in law although none of them may be exercisable in practice. This does not mean that his parental status becomes a dead letter or a mere paper title. It will have real and tangible value, not only as something he can cherish for the sake of his own peace of mind, but also as a status carrying with it rights in waiting which it may be possible to call into play when circumstances change with the passage of time. It is not difficult to imagine situations in which similar considerations would apply in the case of a natural father. Though existing circumstances may demand that his children see or hear nothing of him, and that he should have no influence upon the course of their lives for the time being, their welfare may require that if circumstances change he should be reintroduced as a presence, or at least as an influence, in their lives. In such a case a PRO, notwithstanding that only a few or even none of the rights under it may currently be exercisable, may be of value to him and also of potential value to the children. Although there may be other factors which weigh against the making of a PRO in such circumstances, it could never be right to refuse such an order out of hand, on the automatic ground that it would be vitiated by the inability to enforce it.
From that description of the governing law, we turn now to the facts. The father and the mother (as we shall call them) met and began to live together in 1986. Benjamin was born on 24th August 1987. The parents separated in August 1988, at which date the mother was pregnant. Their youngest son Timothy was born on 16th December 1988. For some 12 months after the date of separation, that is to say down to August 1989, the father enjoyed access to Benjamin and (after his birth) to Timothy. Access was thereafter refused by the mother, and the father was forced to make an application for access to the court which he did in January 1990.
The mother is 27. She had a middle-class upbringing including independent schooling, but in her teens she rebelled first from school and then from home control. During her estrangement from her own family she met the father. He is 35 and was trained initially as a carpenter. He was involved in a serious accident in his 20's and suffered injuries which rendered him unfit for work. He now lives on his own in accommodation rented from a tenants' co-operative. The relationship was not a happy one, and it involved complaints of physical violence by the mother (which the father denied). The judge accepted the mother's evidence that her recollection of life with the father included memories of tension, arguments and being shouted at and "ground down". At one point the mother suffered a temporary breakdown requiring in-patient hospital treatment for two weeks. The father, as we have already said, enjoyed some access after the separation, because the mother then took the view that he was entitled to it. An access occasion in August 1989 gave rise to a quarrel, after which the mother refused any further access. She also thereafter rejected any offers by the father to pay maintenance for the children. In December 1989 the mother took in a male lodger. They have become close friends, but there is as yet no certainty that their relationship will develop into anything permanent.
On 29th January 1990 the father took out an application under the Guardianship of Minors Act 1971 for access ("the access application"). That was followed, on 20th August 1990, by an application for a parental rights order ("the PRO application"). An order was made in the access application for a court welfare officer's report. In his report in that application dated 3rd December 1990 the court welfare officer described the mother as stating that she was no longer able to see any value for Benjamin and Timothy in maintaining contact with their father. His comment on that reads:
"However I think her concerns are greatly augmented, and probably finally overtaken, by the fact that she perceives access as a threat to her new life in a home of her own, her present life-style and the possibility of a new partnership."
He continued:
"She cannot bring herself to talk to the children about their father. It looks as though if access were to be ordered they would be separating from a mother left in a state of high anxiety. It is difficult to imagine Benjamin and Timothy remaining unaffected by this. In their activities and relationships they are at an age where they consciously and unconsciously seek and need her approval."
Although he described the mother has having stabilised, perhaps to a remarkable degree, from her previously disordered life-style, the court welfare officer concluded his report with these words:
"There is, I think, a risk that her current emotional equilibrium could be changed by an access Order. With this possibility in mind, together with the total breakdown of communication between the parties, I am doubtful that a resumption of access at this time would prove to be a rewarding experience for Benjamin and Timothy."
The combined hearing of the access application and the PRO application took place in January 1991. It was attended by the father, the mother, the mother's lodger friend and the children's maternal grandmother, all of whom were
cross-examined. The court welfare officer gave oral evidence and was questioned on behalf of both parties and by the judge. He dealt only with the issue of access and was not asked for his views on a PRO. The court was then addressed by the representatives of the two parents.
Mr Allan Levy, Q.C., counsel for the appellant father, was not present at the hearing, but his junior, Miss Lester, represented the father on that occasion, and has been able to confirm what Mr Levy has told us on instructions, namely that no question of postponing any order on the PRO application was raised by either party or by the judge. At the conclusion of argument, the judge announced that he would reserve judgment and would in due course hand down his decision in writing, which would be supplied directly to the parties by the court office, in order to avoid the necessity of their further attendance.
On 19th February 1991 he duly handed down, and the court dispatched to the parties, a written judgment which directed that both applications should be adjourned generally, with liberty to restore on the basis that a further court welfare officer's report would be obtained by 31st December 1991. There has been no appeal against that direction so far as the access application is concerned.
The judgment was detailed and careful, dealing fully with the background history and the contentions of both sides. In his conclusions the judge dealt first with the access application, stating that:
"In my judgment any access order now would lead to such an increase in tension in the mother that even if overt breakdown did not occur there would inevitably be a deterioration in her ability to look after two lively young children neither of whom has yet reached school age and whose care (with some assistance from others such as her mother and [the lodger]) is her constant preoccupation. Consequently I am not prepared to make such an order. I reach that conclusion with regret ..."
He added that he was not, on the other hand, prepared to support the mother's hope for a "clean break", that he intended to keep the access position under review, and to that intent he ordered a further court welfare officer's report to be filed by the end of the year, with the parties being called in for further directions thereafter.
Turning next to the PRO application, the judge began his remarks by saying:
"At first sight it seemed to me that the father was entitled to such an order almost as of right, because he is undoubtedly the father, despite the absence of marriage. However, I am satisfied after hearing arguments and giving the matter further consideration the law is not as simple as that."
He next stated his conclusion on the PRO application (in which, it should be noted, the reference to re "H" is to the brief report in the Times newspaper which was the only report then available) in the following terms:
"25. There is only limited guidance in the deciding cases on the circumstances in which the Court should make an order under Section 4 of the 1987 Act. In re H (Minors) (Local Authority: Parental Rights) [1990], 20th November, Court of Appeal, it is suggested that the Court had to take into account a number of factors including the commitment the father had shown, the degree of attachment existing between the father and the child and the reasons for his applying for the order. This mother cannot bear the thought of this father having access, or the thought of his having a say in their education and general welfare. In my judgment in the circumstances of this case a Section 4 Order would have to be accompanied by such a stringent Section 11A order as to make it nugatory. Likewise an order under Section 4 of the 1989 Act would immediately have to be accompanied by a stringent prohibited steps order. In these circumstances it does not seem appropriate to make the order at all.
26. The only matter which gives me concern is that even under the amendment made by the Children Act 1989 in the Adoption Act 1976 a natural parent needs a Section 4 order in order to have a parent's right of objection; see 1989 Act, Schedule 10, paragraph 30(7). I am disturbed at the thought that this father would have no right to object to an Adoption application. It seems to me quite likely that one day such an application may be made. Perhaps following In re H above a Section 4 order could be made for the purpose of hearing him, but there are difficulties in that approach. However, I am not concerned with adoption, and I find the other considerations decisive.
27. For all these reasons both of the father's applications are adjourned generally with liberty to restore; they are not dismissed. However, I am not prepared to make an order in his favour today on either application."
The father appeals against that judgment on the grounds already indicated. He does not challenge the decision to adjourn the access application. He contests the order so far as it affects his PRO application, however, on the grounds that it imposes a postponement for which neither side had asked and on which neither side had been heard; that it involved a final determination and was not capable of being postponed or adjourned at all; and that it was a determination fundamentally flawed in law because it treated the practical enforceability of parental rights as being a condition precedent to any declaration by the court conferring them.
The mother has not been represented at the hearing of the appeal. She has written to the court, explaining that although her modest interests under the family trusts on which she is now dependent are sufficient to disqualify her from legal aid they are inadequate to fund representation. She has felt (understandably in the circumstances of her emotional health as found by the judge) that attendance at court in person would be too great an ordeal for her, but has described to the court, in eloquent and moving terms, her profound conviction that the children's interests require them to be cut off from their father altogether and spared the severe disruption which his reintroduction into their lives would in her view involve.
We have decided, with some reluctance in view of the judge's careful and painstaking approach to this case, that the appeal should succeed on all the grounds urged by the father. The judgment had contained an exhaustive examination of the arguments for and against a PRO, a detailed exposition of the judge's reasons for regarding a PRO as inappropriate, and a clear adjudication at the end of paragraph 25 pronouncing against a PRO. It was not therefore open to the judge to do what appears to have occurred to him, almost as an afterthought at the very end of his judgment, namely to adjourn the PRO application. He had in essence already decided it, and there was nothing left for him to adjourn. It was, moreover, a procedural error on his part to direct a postponement of that application without having given an opportunity of being heard on that proposal to the counsel who had fully argued the PRO application before him on its merits, and were expecting an immediate and final answer to it, one way or the other. We appreciate that this oversight may have stemmed entirely from the judge's desire to save costs by handing down a judgment without putting the parties to the expense of attending to receive it; and that had he taken the more usual (though for the parties financially more onerous) course of delivering or handing down the reserved judgment at a hearing attended by counsel, there would have been an opportunity for objection to be taken to the adjournment before his order was drawn up, in which event it is unlikely that this aspect of the appeal would have arisen at all.
On the major aspect, namely the judge's approach in law to the exercise of his discretion to grant or refuse a PRO, the judge cannot be criticised for taking questions of enforceability into account. We have already given our reasons for holding that he was fully entitled to do so. His references, however, to the need to accompany a section 4 declaration with stringent orders restricting the exercise of the rights granted, and his evident view that this would render any declaration nugatory, demonstrate in our judgment that he had fallen into the error of treating the lack of current enforceability of major areas of parental rights as disqualifying the father automatically from having a PRO made in his favour. We have explained our reasons already for saying why such an assumption would in our judgment be wrong in law. It is, of course, very much to be borne in mind, in sympathy with the judge, that this is still a relatively new field of family law on which there had as yet been very little reported authority, apart from re "H" which was then available to him only as a newspaper report.
There is therefore jurisdiction in this court to intervene. The question then arises as to whether the PRO application should be remitted to the county court for rehearing (perhaps before another judge) or dealt with by this court under RSC Order 59, rule 10(3). We would not of course take the latter step if we thought there was any risk of potentially relevant facts or circumstances being left out of account. There does not appear to us to be any such risk. The facts have been fully set out in the judgment, and we think it highly unlikely that if the mother had been present or represented at the appeal hearing she would either have wanted a rehearing in the court below or been able to point to any potential disadvantage to her in the issue being dealt with by us on the facts as found by the judge. We therefore propose to exercise the discretion under section 4 ourselves.
The association between the parties was shortlived, lasting no more than two years. Nevertheless two children were born of it, and it is right (bearing in mind the underlying policy of the 1987 Act) to take into account the fact, as Mr Levy reminds us, that it is by no means unknown these days for married associations to founder after an equally short period. After the separation the father maintained access to Benjamin and Timothy regularly until August 1989 when further access was denied to him. He applied in January 1990 for access by court order and followed that up in August 1990 with the PRO application.
The question which the statute requires us to ask in the present case is, in our judgment, the following: was the association between the parties sufficiently enduring, and has the father by his conduct during and since the application shown sufficient commitment to the children, to justify giving the father a legal status equivalent to that which he would have enjoyed if the parties had been married, due attention being paid to the fact that a number of his parental rights would, if conferred on him by a PRO, be unenforceable under current conditions?
It may be that the mother's emotional balance will remain so delicate that courts in future years will still regard it as potentially injurious to the children's welfare to allow the father back into their lives at all for fear of the effect of that upon their mother: or it may be that with the passage of time and the development of the boys' maturity, the risk of upset to their mother would diminish to the point that the father can be allowed to play some part in their upbringing or at least in their recreation. Whichever way the future goes, it seems to us that the link which the father established with the boys in their earliest months is worth maintaining, for his sake as well as for theirs, and would justify the making of a PRO at this stage. We do not overlook the fact, either, that a PRO (perhaps more accurately abbreviated PRDO) imposes duties as well as conferring rights. The legal duty to maintain the boys which the appellant would assume under a PRO may be more theoretical than real while he is denied access, but it is nevertheless immediately enforceable, and the fact that the father is willing to assume an immediately enforceable burden without it being matched at present by any obvious immediately enforceable benefit should (to put it no higher) count in his favour rather than against him.
The appeal is therefore allowed. The order of 18th March 1991 is set aside so far as it adjourned the application dated 20th August 1990 for a PRO, and there will be substituted therefore an order that the appellant shall have all the parental rights and duties with respect to the minors.
The mother should not feel that she has suffered any disadvantage through her absence from this hearing. Mr Levy fairly raised, and the court itself has been astute to take, every point that might have been urged on her behalf had she been present.
Order: Appeal allowed; legal aid taxation of appellant's costs; certificate for two counsel.
