England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Sheffield County Court
His Honour Judge Jones
SE12P00245

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2013

Lord Justice Ryder:

1. M is a young man who was born on 26 July 2002 and is now 11 years of age. He is represented in these proceedings by a children's guardian. His father is PM and his mother is MB. His parents are not married and have separated. Although father's name appears on M's birth certificate, that pre-dated the change in the legislation in 2003 so that he does not have parental responsibility.
2. This is father's appeal against the order of His Honour Judge Jones sitting in the Sheffield County Court on 16 October 2012. The applications before the court were those of father for parental responsibility and direct contact with his son. The court refused to grant parental responsibility, dismissed the application for direct contact and made orders for indirect e-mail contact and under section 91(14) of the Children Act 1989 [CA 1989] that no application may be made by father for an order under the Act for a period of two years. Father appeals with the permission of McFarlane LJ. Permission was limited to the parental responsibility and section 91(14) decisions. Both mother and the child through his children's guardian oppose the appeal.
3. The background circumstances to this appeal can be taken from the judgment of Judge Jones and from the very helpful skeleton argument filed on behalf of M. The parents began a relationship in 2000 and separated in February 2007. Father continued to have a significant relationship with M until he sent mother an e-mail on 1 December 2008 saying "I'm finished inside" and "I think my life is done now". He went on to say that mother should keep M and he would not be able to see him for a while. Although mother accepted that position, within days father changed his mind and on 17 December 2008 father removed M from school without notice to mother. Father disappeared with M. He did not return to his own home and he avoided telephone contact with the police. When eventually contacted by them, he refused a request for a welfare visit. M was returned to school the following morning. Whether father realises it or not, this was a defining incident for mother and for M.
4. Mother issued proceedings on 19 December 2008 for a residence order, an order that father have no contact and a prohibited steps order. Within those proceedings, father gave an undertaking and supervised contact began. Between 22 December 2008 and late February 2011 when direct contact ceased, father had contact with M in a supervised contact centre. On 28 February 2011 a contested hearing began in the Sheffield County Court. The following day, father summarily refused to participate and asked for permission to withdraw his applications, thereafter leaving the court not to return. Her Honour Judge Carr granted a residence order to mother, refused father's application for permission to withdraw, made no orders as to parental responsibility and direct contact and granted a section 91(14) order against father for two years. M has not seen his father since. Father appealed to this court which on 14 March 2012 set aside the section 91(14) order and on the understanding that father would make fresh applications to the court, remitted the matter to the county court ([2012] EWCA Civ 446, Thorpe and Etherton LJJ and Henderson J).
5. On 22 March 2012 father issued applications for contact and parental responsibility. He was represented before Judge Jones as he has been in this court although he dispensed with the services of his counsel in the court below causing an adjournment for just over a week to allow his solicitors to instruct fresh counsel. Father wanted unsupervised direct contact with M every weekend leading to staying contact. Mother was and is a litigant in person and M has been represented by his solicitor in the court below and by counsel in this court, through his children's guardian. They both opposed direct contact for and the grant of parental responsibility to father. The section 91(14) question was re-raised by mother at a case management hearing before Judge Jones leading to a recital that it would be decided at the final hearing where an order was recommended by the children's guardian.
6. In order to put the decisions that were made into context it is important to understand that Judge Jones heard evidence from father, mother, the children's guardian who communicated to the court the wishes and feelings of M and also from a single joint expert, Dr Croxon, who is a psychologist. Although much of the written and oral evidence related to the contact question, the findings and value judgments that were made by Judge Jones are material to the decisions under appeal.
7. Father does not know M's home address or current school. M would like to keep it that way. He was described by his teacher as a popular boy who is emotionally immature with low resilience although his self-esteem and confidence are improving. The guardian described him as articulate and well able to express his own wishes and feelings. In July 2012 he wanted his father to write to him. At that stage father would usually write long typed letters. M wrote a letter to the judge at that time in which he said: "I do want to see dad with supervision and I do miss him". By 24 September 2012 and in preparation for the final hearing before Judge Jones, the guardian recorded that M did not want to write a further letter to the judge, but wanted him to know that he did not want to see his father straight away. He said he would not mind seeing his father when he is older and would still wish for the contact to be supervised. He was scared that his father might be angry with him and shout at him. He wanted to know whether the court had stopped indirect contact (which it had not) because he had not received anything from his father since before June 2012 including on his birthday.
8. The judge accepted the expert opinion before him that there was no evidence of any significant emotional pressure being placed on M by mother in respect of his relationship with his father. The judge rejected "any suggestion from the father that this is a state of affairs [that] has been brought about by the attitude and actions of the mother". The judge found that mother "understands the importance to [M] of maintaining and developing a close and loving relationship with the parent with whom he no longer lives". He also found that mother had made efforts to support contact but that she had been "considerably distressed by, and has struggled to understand, the entrenched and blinkered attitude of the father". The judge accepted the guardian's opinion that the proceedings had had an enormous impact on M who felt responsible for expressing his views honestly and was disappointed at the "massive change" for him when father stopped writing.
9. The court accepted the evidence of Dr Croxon about father which was as follows:

"the father presents as an individual who is rigid and inflexible in his thinking, being egocentric and preoccupied, displaying a certain degree of paranoia, traits that are likely (to be) linked to his personality functioning…

The father appears to be an individual who can be defiant, unco-operative and difficult to get along with when he perceives others disagreeing with his views or if they fail to meet his needs in some way…He believes that others are persecuting him, being unable to reflect upon his own actions or responsibility…

When his relationship with the mother broke down, the father struggled to accept this, remaining enmeshed, attempting to seek to have his needs met by the relationship, albeit in a different form. …the father continues to display narcissistic, paranoid tendencies and remains unable to see issues from any perspective other than his own. He continues to see himself as blameless, portraying himself as a victim of parental alienation and a corrupt system in which professionals are biased and take sides and his rights as a father are violated. […]

the locus of enmeshment may well now have shifted to [M] as the father has evolved an idealised view of their relationship and is now preoccupied with the 'fight' to have contact with him."

10. Dr Croxon advised that contact would need to be strictly supervised and time limited with no reference to adult matters or the court process having regard to the risk that "the father will seek to embroil [M] in adult matters and will seek to blur the boundaries of contact with a detrimental effect upon the mother and therefore, indirectly, on [M]". She advised that father would not comply with boundaries of that kind and would "not work with the arrangements in any way, shape or form, whether supervised or not" with the consequence that only indirect contact should be afforded. Father's oral evidence to Judge Jones demonstrated patently that which Dr Croxon had predicted. He said that he was angry and outraged at the suggestion there should be any supervision of his contact for which he saw no reason. He found it demeaning. He said he would never give up his struggle to see [M] and that he had become a campaigner for children. That said, he agreed he had not written to his son since before July 2012.
11. This court will strive to maintain a meaningful relationship for a child with both parents when sadly the adults' relationship breaks down and they separate (see, for example, Re W (Children) [2012] EWCA Civ 999). In an ideal world, a child should feel safe and secure in the care of both parents and their arrangements for the future of their child should reflect this. There remain, however, some cases in which one or more of the factors set out in section 1(3) CA 1989 are established by evidence which demonstrates a risk of harm to the child of a nature and extent that cuts across that imperative. This is one of those cases. This is not a case where the court, the professionals or the mother are, as father believes, "conducting a witch-hunt against him" with biased, unprofessional or dishonest material. Quite the contrary, it was clear on the material before Judge Jones and at that time that it was father who represented a risk to his own child and would continue to do so until he realised he needed help or otherwise came to accept the un-contradicted expert evidence about him that existed. This is one of the relatively rare and exceptional cases where direct contact is not ordered by a court.
12. It is in this stark factual context that Judge Jones had to make decisions about whether to grant father parental responsibility and whether to bar him from making further applications for a period of time.

Parental Responsibility

13. I emphasise so that it might not be misunderstood, that the judge carefully considered the factual and opinion evidence and came to his findings and evaluative judgments before applying the relevant tests and separately coming to a decision about each of the issues in the case. He did not fall into the error of assuming that the distinct questions of parental responsibility and contact were linked or so related that a decision on one question automatically followed from a decision on the other. Although the two questions are not wholly irrelevant to each other, and each has to be answered according to the best interests of the child, they are separate and distinct questions to be examined from different perspectives, see Waite J in Re CB (A Minor) (Parental Responsibility Order) [1993] 1 FLR 920, as approved by Ward LJ in Re C and V (Contact and Parental Responsibility) [1998] 1 FLR 392 CA at 396H to 397F.
14. Since 1 December 2003 and by section 4(1) CA 1989 as inserted by section 111 of the Adoption and Children Act 2002, an unmarried father acquires parental responsibility by the inclusion of his name on the child's birth certificate. That legislative change accompanied society's recognition of and expectations for the exercise of parental responsibility by parents who are not married or in a civil partnership and who have separated with the consequence that the child does not live with one or other of them. It has become more common for parental responsibility to be considered by a court before other substantive welfare decisions are made because it is an important status which is an incident of the family and private lives of the adults and child concerned and which is reflected in the way in which parents should exercise their responsibilities for their child. It should be rare for a father not to be afforded this status. As McFarlane LJ remarked in Re W (supra) at [47]:

"in general terms, it must be the case that where two parents share parental responsibility, it will be the duty of one parent to ensure that the rights of the other parent are respected, and vice versa, for the benefit of the child."

and at [80]:

"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 CA 1989, s 3 and the likely circumstance that that responsibility is shared with the other parent, it is to be hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post-separation contact than may have hitherto been the case."

15. Where a father has not been registered on a child's birth certificate and he and the mother are unable to make a parental responsibility agreement, a father may acquire parental responsibility by an order made in accordance with section 4(1)(c) CA 1989. The test to be applied by the court is the welfare test in section 1 of the Act: "the child's welfare shall be the court's paramount consideration", but because the application is not one of those specified in section 1(4), the welfare checklist in section 1(3) does not apply. In Re S (Parental Responsibility) [1995] 2 FLR 648 CA at 652H to 657B, Ward LJ gave the leading exposition on how to apply the test to this decision. In his review of the authorities which I shall not repeat, the following non-exhaustive factors were extracted which are relevant to this case (which I shall refer to for the purpose of this judgment as the 'Re S factors'):

i) The court should take into account the degree of commitment which the father has shown towards the child, the degree of attachment which exists between the father and the child and the reasons of the father for applying for the order.

ii) It is a relevant but not an overriding consideration that the court considers the prospective enforceability of parental rights.

iii) It is important to observe the interrelation between the rights and the status and the exercise of those rights and the restrictions upon the exercise of those rights that exists or that can be imposed. One of the examples given of this was the "cruel and callous" behaviour of a father who abducted a child from her mother for a few days who was not granted parental responsibility and other circumstances where a misuse of 'rights' could be controlled by a specific issue or prohibited steps order or in the last resort the discharge of the parental responsibility order.

iv) While not wholly irrelevant to each other, a section 8 welfare decision and a decision whether to grant a father parental responsibility are separate and distinct questions to be examined from different perspectives.

v) Where a concerned though absent father has established a degree of commitment to his child, there is a degree of attachment between them and his reasons for applying for parental responsibility are neither demonstrably improper nor wrong, then prima facie, it would be in the interests of the child for a parental responsibility order to be made and the court will need cogent evidence that the child's welfare would be adversely affected before considering otherwise.

16. Perhaps of greater significance is the principle that he underlined which is that the making of a parental responsibility order confers "upon a committed father the status of parenthood for which nature has already ordained he must bear responsibility" and the corollary from the perspective of children which is that their self esteem is informed by a favourable image of an absent parent out of which, inter alia, they will derive their own positive identity.
17. The practical application of the test described in Re S has not been without its problems. In Re P (Parental Responsibility) [1998] 2 FLR 96 at 107E, Hirst LJ provided helpful guidance:

"Parental responsibility is not automatically conferred on fathers who are not married to the mothers of their children. There must, accordingly, be a criteria against which an application for parental responsibility falls to be judged. The only statutory criteria are (1) that it must be in the interests of the child for such an order to ne made, and (2) that the making of a parental responsibility order must be better for the child than making no order. In every case it is a matter of weighing in the balance the various factors in favour of and against granting parental responsibility and deciding, on the facts of the individual case, whether an order for parental responsibility is in the interests of the child.

If the father's behaviour towards the child has been irresponsible, and if, as a result, he poses a risk to his child against which the child needs to be protected by having all contact to the father supervised … those facts must be a consideration weighing against making a parental responsibility order and may result in an order being refused.

Clearly where a father has shown commitment to a child, has a good relationship with the 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…

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 and inappropriate ends to interfere with and possibly undermine the mother's care of the child, then clearly the court retains the 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 under s 8 of the Children Act 1989.

In our judgment, it is the element of irresponsibility in the father's behaviour, or his abuse or likely abuse of parental responsibility which may disqualify him. Taken to its extreme, [counsel's] argument in the instant case would result in every father who met the first two of Balcombe LJ's criteria in Re H (No 1) (above) obtaining an order on the basis that any manifestation of irresponsibility or abuse of parental responsibility could be contained by a s 8 order. That is clearly not the law and equally clearly, it is not what Ward LJ is saying either in Re S or Re C and V."

18. There are clear examples in the authorities of circumstances in which it has been held that the misuse or likely misuse of parental responsibility has been sufficient to lead to parental responsibility being refused where that would be likely to result in a direct interference in the settled care of the care giver or an indirect interference by the undermining of the ability of the care giver to provide adequate care. As ever, it is the nature and extent of the misuse that is critical and each case is fact sensitive. What perhaps should be emphasised is, that while there is no presumption, a parental responsibility order should normally be made on a father's application and it will be a rare case where it is not. The value judgment of the first instance judge is critical in his or her assessment of whether the status it confers will be misused or abused and if so whether that is sufficient to decline it given the protections that can be afforded by conditions attaching to its use through another section 8 order.
19. The grounds of appeal as developed before this court in father's amended skeleton argument are that the judge:

i) applied the wrong test in relation to the granting of a parental responsibility order;

ii) failed to give any or any sufficient weight to 'a series of facts' including the history of father's contact and his presentation during the proceedings;

iii) wrongly gave decisive emphasis to father's motives in making the application;

iv) failed to consider properly, or at all, the conditions which might be attached to an order so as to limit the practical impact of that order;

v) failed to give any or any sufficient weight to parental responsibility being the recognition of father's status as the child's father with the benefits that the child would derive from that.

20. As I have commented, the judge approached this decision by first considering the evidence, the strength of which I have outlined. He summarised the factors described in Re S (above). It cannot be said that in that regard he made an error of law by applying the wrong or an inappropriate test. What I take to be the import of this complaint is that the judge should have looked at the welfare decision through the prism of status and that if he had done so he would have come to a different conclusion. Before considering that ground of appeal it is important to look at the judge's overall conclusion.
21. The judge accepted that father had demonstrated commitment to M and that father and son had an attachment with each other. It was self evident on the findings and value judgments to which the judge had come, that the key issue was father's reasons for making the application and the likely impact there would be on M's welfare by an interference or misuse. The judge identified the key issue in those terms. He went on to describe father's evidence on the point and his conclusion as follows:

"the father spoke of wanting to exercise his "rights" in respect of [M] and, while the existence of such an order would not entitle the father to intervene in [M's] day-to-day life, I am satisfied that the father would not see it in that way and that his principal aim would be to seek to exercise control over [M] and thereby, indirectly, over the mother"

22. The judge added that "questions of control are, in my view, of great importance to the father". He gave examples of that from the court process and father's desire to control the expert assessment that was undertaken and then continued by concluding that:

"I am in no doubt that the father would be unable to exercise the order appropriately and responsibly but rather would misuse it in ways which would impact undesirably on [M], causing him worry and distress and imposing stress upon the mother to such an extent that her ability to provide proper care for [M] would be undermined. Indeed, I find that, given all I have seen of, and read of and from, the father I find it difficult to see what aspect of parental responsibility he could safely be allowed to exercise."

23. There was ample material from father's own evidence and from Dr Croxon to justify the conclusions to which the judge came. In oral submissions Ms Rogers took us to further material in the written opinion of Dr Croxon which the judge accepted. This included as respects father:

"it appears that when faced with rejection [father] will engage in varying behaviours, including cajoling, begging and threatening in order to manipulate others into meeting his needs and that when others do not meet his expectations he may become increasingly controlling, including expressing anger to manipulate them, transgressing boundaries in an effort to resume control of situations … the prognosis for significant behaviour change is poor due to excessive denial … it is possible that [father] will attempt to use his relationship with his son in an attempt to manipulate or denigrate [mother]".

24. So far as mother is concerned, there were a number of similar opinions which related to the vulnerability of her care of [M] by reason of father's behaviours. It is sufficient to give one example:

"[mother] reports her belief that after their separation [father] used [M] to continue their relationship and more latterly her fear that he will relate to [M] in a similar manner as he did with her during their relationship, being controlling and abusive, [father] having become obsessed with his rights, rather than [M's] feelings. "

25. The judge then examined the specific aspects of parental responsibility that father said he was interested in. They were education and access to medical information. One need only recollect, as the judge did, that M does not want his father to know where he is now being educated let alone any further information about his school to appreciate how challenging father's wishes are to M. That is hardly surprising given the fact that as a young boy he was taken from school overnight to a place unknown to his mother or the authorities. In a circumstance where a father wants the very information that a young person wishes to deny him access to, and where that child is of an age and understanding to articulate his reasons, the court needs to be very anxious in its scrutiny. The judge scrutinised the evidence of father and M and as a consequence was cautious. He was right to be. Having regard to the father's behaviours, the mother's vulnerabilities, and M's wishes it cannot be said that the judge was wrong in his evaluative judgment that it would be detrimental to M's welfare to allow father to exercise even the limited aspects of parental responsibility that he identified.
26. It is at least arguable that the aspects of parental responsibility that father chose were the most challenging to M and his mother and are a good example of the antagonistic control exercised by father that the judge concluded was antithetic to M's welfare. I can detect nothing wrong in the judge's assessment of the evidence nor in the judge's careful evaluation of the factors that were weighed in the balance. For the reasons set out, I cannot accept the submission that the judge placed too much emphasis on father's reasons or that he failed to consider restrictions to the exercise of parental responsibility as a more proportionate conclusion. The judge specifically noted father's concession in the proceedings that he would accept any restrictions upon him including as to his contact and he took into account the positive history of supervised contact. In the final event, they were insufficient to ameliorate the cogent evidence of likely misuse which the judge was entitled to rely upon in coming to his conclusion.
27. I return now to the question of status. The status conferred by parental responsibility is an important legal recognition of the delicate balance between rights, duties, powers, responsibilities and authority that are the components of family and private life. It is integral to the concept of parental responsibility. It is not, however, a separate 'stand alone' factor, let alone a presumptive factor to be weighed alongside other Re S factors in the welfare consideration of whether a parental responsibility order should be made. The status of parental responsibility underlies the authorities and the guidance that was applied by the judge in this case. It would no doubt have been helpful to articulate the importance of parental responsibility as a status question i.e. the reason why the Re S factors have been identified as being relevant to the welfare question, but that would not have altered the evidence the judge accepted nor the evaluative judgment on the Re S factors to which he came. For my part, I have come to the clear conclusion that the judge did not err in law nor was there any error in his approach or his evaluation.

Section 91(14) order

28. The section 91(14) question can be taken rather more succinctly. The leading authority on this question remains Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 CA. The guidelines were summarised by Butler-Sloss LJ at 592H to 593F:

i) "Section 91(14) should be read in conjunction with s 1(1) which makes the welfare of the child the paramount consideration.

ii) The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.

iii) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.

iv) The power is therefore to be used with great care and sparingly, the exception and not the rule.

v) It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications.

vi) In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.

vii) In cases under para (6) above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.

viii) A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point.

ix) A restriction may be imposed with or without limitation of time.

x) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.

xi) It would be undesirable in other than the most exceptional cases to make the order ex parte."

29. The grounds of appeal as re-formulated in the amended skeleton so far as they concern the section 91(14) order are that the order was wrong because:

i) The father had not made frequent and/or unnecessary applications;

ii) That child had expressed a wish for direct contact in July 2012 and although he had through the guardian stated that he did not want direct contact, he may well adopt a different position in the near future such that section 91(14) was not capable of being consistent with the child's changing feelings within a shorter timescale; and

iii) The making of the order was disproportionate and excessive in all the circumstances of the case.

30. The first ground is in effect an argument that the judge made an error of law. It is plain from the material that I have already recorded from the judge's conclusions that this was not a repeated or unnecessary applications case. This was a case which fell within paragraphs (vi), (vii) and (x) of the guidelines. The judge correctly characterised the case as one in which "there is no history of repeated applications yet the welfare of the child requires an order". He summarised the guidelines accurately and, very properly, no issue is taken with that summary. He explained that the order was a weapon of last resort and that great care must be taken in exercising the discretionary power to impose it.
31. In coming to the conclusion that an order would be proportionate the judge took account of M's present wishes and feelings and father's evidence that this is a crusade that he would never give up. The guardian's evidence which the judge accepted was that M needed to be free of the burden of litigation as did mother. That is most particularly the case during M's move to secondary school which will occur this year. The judge's reasoning for the order he made was properly constructed out of the evidence he accepted about father. The risk from which the judge sought to protect M was lucidly described and the judge was right to attribute responsibility to father for the heightened risk caused by the use of internet discussion media to campaign about this litigation. In my judgment the section 91(14) order was made in accordance with principle and was neither disproportionate as a response to the facts nor in its nature and extent.
32. In so far as M may change his mind about direct contact, for example as a response to successful indirect contact, then the father has the right as does mother or M to ask the court to consider that change of mind as a reason to discharge, or vary the order.
33. The judge regarded this as an exceptional case. He said so and it is. Work will need to be done in the next few years to ensure that M develops at least as favourable a view of his father as he had when his father was still writing to him. Given the importance of the letters to him, father would be well advised to take maximum advantage of the indirect contact by writing appropriate messages for his son that do not touch on adult issues or the court's process. At the same time, father could assist himself by obtaining assistance to deal with his underlying behaviours.
34. For all these reasons, I would dismiss this appeal.

Lord Justice Beatson:

35. I agree that this appeal should be dismissed.

Lord Justice Lloyd:

36. I also agree.