England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION OF THE HIGH COURT OF JUSTICE
BAKER J.
BH11P00251

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/03/2014

Lord Justice Ryder:

1. On 12 April 2013 Baker J made an order removing the appellant father's parental responsibility for his son on the application of the child's mother who is the respondent to this appeal. The child who was born in 2004 and who I shall call D is the parties' only child. The parties have not been married. The appellant was named on D's birth certificate as the father and he accordingly has parental responsibility for him. D's mother has two daughters by a previous relationship. In 2009, D's father pleaded guilty to sexual offences committed against those two young women. He was sentenced to 48 months imprisonment and was released in June 2011.
2. Immediately upon his release D's mother issued an application that the father's parental responsibility for D should cease and the father cross applied for a specific issue order requiring D's mother to provide him with annual reports about D's progress. D's father has not made and says that he does not intend to make any other application under section 8 of the Children Act 1989 [CA 1989], in particular for contact with D. In fact he has not had contact with D since D was 4 years of age.

The concept of parental responsibility

3. Parental responsibility which was introduced by the CA 1989 replaced the concept of parental rights in section 4 of the Family Law Act 1987 and is defined by section 3(1) CA 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".
4. 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.
5. Section 111 of the Adoption and Children Act 2002 [ACA 2002] amended the CA 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 CA 1989 relating to the cessation of parental responsibility. The amended provisions are as follows:

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

6. As this court said in Re M (A Child) sub nom PM v MB and M (A Child) [2013] EWCA Civ 969 at [14]:

"Since 1 December 2013 and by section 4(1) CA 1989 as inserted by section 111 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."

7. There is only one reported case of significance in relation to section 4 CA 1989 and that is Re P (Terminating Parental Responsibility) [1995] 3 FCR 753, a decision of Singer J prior to the statutory amendment. It is submitted by Mr Verdan QC on behalf of the appellant father that given the principles articulated in Re P and the changes to social conditions and norms since 1995, the judge ought not to have removed the father's parental responsibility in this case. Mr MacDonald QC for D's mother firmly resists the appeal and seeks to uphold the analysis of the judge below.
8. The question of the differential treatment of married and unmarried fathers by the statutory scheme is not before this court for consideration. Neither mothers nor married fathers can have their parental responsibility removed. That was the issue in Smallwood v UK (29779/96) (1999) 27 EHRR CD 155, an admissibility decision of the Commission in which it was held that the difference in treatment between mothers, married and unmarried fathers in the context of the jurisdiction of the court to make an order which removes an unmarried father's parental responsibility is not a violation of article 8 ECHR [the Convention] taken in conjunction with article 14. On that basis the father in this case was refused permission to appeal on the question of whether the differential treatment was proportionate and whether section 4(2A) CA 1989 was incompatible with the rights set out in articles 8 and 14 of the Convention.
9. The grounds of appeal upon which permission was granted are that:

i) the judge failed to distinguish Re P to have regard to the principles set out in the Human Rights Act 1998 [HRA 1998], the ACA 2002 and the changing social norms over the 18 years since Re P;

ii) the judge failed to consider whether the mother had discharged the burden of proof so as to establish the allegation that the father was "a sexual recidivist"; and

iii) the judge failed to make a proportionate order or take into account the asserted policy consideration that applications of this kind should not be allowed to become "a weapon in the hands of a dissatisfied mother".

10. The concept of parental responsibility is not further defined in any enactment and its significance in the CA 1989 is as to the contribution to a child's welfare that the status confers on the adult concerned. That much is clear from the statutory scheme: parental responsibility is conferred on non-parents who are granted residence or special guardianship orders, is granted to a local authority when a care order is made and may be shared by adults and agencies. The scheme also provides for a priority in the exercise of the responsibility when it is granted to a local authority or a special guardian. As the Law Commission said in its report 'Family Law Review of Child Law, Guardianship and Custody' [1988] EWLC 172 at para 2.4: "the powers which parents have to control or make decisions for their children are simply the necessary concomitant of their parental duties": Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112.
11. 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 1985: 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.
12. 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) CA 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)).
13. 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 the father has shown to 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) may be relevant on the facts of a particular case but are not to be taken to be a substitute test to be applied (see Re M (A Child) sub nom PM v MB and M (A Child) (above) at [15] and [16]).
14. 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. The concept of rival presumptions is not helpful, although I entirely accept that the fact of parenthood raises the welfare question, hence the right of a parent (with or without parental responsibility) to make an application under section 8 CA 1989 without permission (see section 10(4)(a) CA 1989. There is also ample case law describing the imperative in favour of a continuing relationship between both parents and a child so that ordinarily a child's upbringing should be provided by both of his parents and where that is not in the child's interests by one of them with the child having the benefit of a meaningful relationship with both. A judge would not be criticised for identifying that, as a very weighty, relevant factor, the significance of the parenthood of an unmarried father should not be under estimated.
15. I am reinforced in my judgment by the dicta of the Supreme Court in Re G (Children) [2006] UKHL 43, [2006] 2 FLR 629 at [30] and [31]:

"30. My Lords, the Children Act 1989 brought together the Government's proposals in relation to child care law and the Law Commission's recommendations in relation to the private law. In its Working Paper No 96, Review of Child Law: Custody (1986), at para 6.22, having discussed whether there should be some form of presumption in favour of natural parents, the Commission said this:

"We conclude, therefore, that the welfare of each child in the family should continue to be the paramount consideration whenever their custody or upbringing is in question between private individuals. The welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child, in particular to his sense of identity and self-esteem, as well as the added commitment which knowledge of their parenthood may bring. We have already said that the indications are that the priority given to the welfare of the child needs to be strengthened rather than undermined. We could not contemplate making any recommendation which might have the effect of weakening the protection given to children under the present law."

Nor should we. The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained, this means that it "rules upon or determines the course to be followed". There is no question of a parental right. As the Law Commission explained, "the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child" or, as Lord MacDermott put it, the claims and wishes of parents "can be capable of ministering to the total welfare of the child in a special way".

31. None of this means that the fact of parentage is irrelevant. The position in English law is akin to that in Australian law, as explained by Lindenburgh J in Hodak, Newman and Hodak (1993) FLC 92-421, and subsequently approved by the Full Court of the Family Court of Australia in Rice v Miller (1993) FLC 92-415 and Re Evelyn [1998] FamCA 55:

"I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process … Each case should be determined upon an examination of its own merits and of the individuals there involved."

16. The essence of the exercise that the court is engaged in was isolated as long ago as in 1991 by Ward J, as he then was, on an application for an order for parental rights under the Family Law Act 1987, section 4 (the predecessor scheme to that in section 4 CA 1989). In D v Hereford and Worcester County Council [1991] Fam 14 at 23A he said:

"Can this (father) show that he is the father of the child, not in the biological sense but in the sense that he has established or is likely to establish such a real family tie with the [child] that he should now be accorded the corresponding legal tie? It would be easier to ask under the Children Act 1989, but the essence is the same: "has he behaved, or will he behave, with parental responsibility for this child?" These real links are not established simply on proof of, or acknowledgement of, paternity."

17. In Re W (Direct Contact) [2012] EWCA Civ 999 this court had the opportunity to emphasise 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."

The grounds of appeal

18. I shall take each of the grounds in turn. In support of the first ground, Mr Verdan submits that the judge should himself have distinguished Re P by considering the "more socially and legally progressive approach of Parliament and subsequently the courts to unmarried fathers" in the period that has elapsed since that decision. Whatever the undoubted responses of Parliament and the courts may have been to the change in social norms over the intervening period, the concept of the paramountcy of welfare has remained intact as the governing principle to be applied. The statutory changes to section 4 CA 1989 introduced by section 111 ACA 2002 did not enlarge, narrow or re-cast the court's powers or the overarching principle to be applied.
19. It is well established that the provisions of the CA 1989 are compliant with the Convention and that the Act was framed so as to take account of the Convention: Re S; Re W [2002] 1 FLR 815 at [109] and Re S-B (Children) [2010] 1 FLR 1161 at [6]. Smallwood v UK post dated the commencement of the HRA 1998 and accordingly to the extent that differences exist in the statutory treatment of unmarried and married fathers, that difference should be construed as being justified. In any event section 111 ACA 2002 was enacted after the HRA 1998 and in the absence of a permissible challenge on incompatibility grounds, there is no independent merit in this submission.
20. Accordingly, where a judge applies the concept of the paramountcy of welfare to an application under section 4(2A) CA 1989, he will have identified the correct principle to apply. If he analyses welfare by reference to the welfare checklist, he will have provided himself with an appropriate analytical framework against which to give his reasons and on the facts he may permissibly look at other potentially relevant factors such as parenthood, commitment, attachment and motive provided he does not raise any one or more of the factors to the status of a competing presumption or test by which he decides the application.
21. Baker J articulated the correct test at [22] and [58] and considered the key issues on the facts of this application at [59], he utilised the welfare checklist as an analytical tool at [54] to [57] and reminded himself of the interference with article 8 rights that needed to be justified. He concluded that despite the need of every child to have an understanding of his biological origins and whenever possible a relationship with each parent, D's welfare would be 'imperilled' were his father to have any involvement in his life. That conclusion is unassailable both on the facts and as a value judgment within a careful welfare analysis.
22. The second ground of appeal relates to the judge's findings of fact and the value judgments he came to upon which he based his ultimate conclusion. So far as the former is concerned this court would have to be satisfied that the judge was plainly wrong in the factual determinations to which he came, that is that there is no objective basis for the same on the evidence that he heard and read, otherwise they will be immune from review. The judge had the benefit "of reading and hearing all of the evidence, of assessing not only the credibility and reliability of the witnesses but also their characters and personalities and the professionalism of the professional witnesses, of living and breathing the case over so many days ..." (Re B above at [205]). This court will be very hesitant indeed to interfere in that process.
23. It is plain from the transcript that Baker J carefully considered the factual and opinion evidence in coming to his conclusions. It cannot be said that he was wrong to reject the expert evidence that he heard from the jointly instructed psychologist having found that his evidence was naive, complacent, unreliable and at times misleading. He made the following findings about the father:

i) the nature and extent of the facts associated with the father's criminal convictions included penetrative sexual abuse, inciting a child to engage in penetrative sexual activity, engaging in sexual acts with a child, causing or inciting a child to engage in sexual activity and three sexual assaults;

ii) he had vacillated over the years between accepting the truth of those facts and asserting his innocence and was presently again asserting that he had been wrongly convicted;

iii) his account of what he called a false confession was wholly unconvincing with the consequence that he had not satisfied the burden under section 11(2) of the Civil Evidence Act 1968 of proving that he had not committed the offences for which he was convicted;

iv) his persistent denials of the validity of the convictions meant that he had repeatedly lied to professionals and to the court (and by implication to his family including his son as that was the factual basis upon which he presented himself to the court);

v) he had lied when he denied giving a previous account to the respondent when he told her that he had been abused in the past by his brother;

vi) having regard to the Lucas direction which the judge gave himself, the father's lies called into question his reliability as a witness (see R v Lucas [1981] QB 720).

24. On the facts that he found, the judge was entitled to conclude (at [51]) that:

"as he continues to deny his culpability for the devastating acts of abuse he perpetrated on the family, I think it highly unlikely that he appreciates the damage he has caused to every member of the family, or the danger of further damage should he have any further involvement with the family"

25. The judge also concluded that D had suffered serious emotional harm as a consequence of the actions of his father and that he was at risk of further emotional harm in the future. The findings and value judgments I have described would have been sufficient on an application of this kind to lead to the conclusion to which the judge came. I emphasise that every case is fact specific and it is not every person who commits criminal offences or even offences of this gravity who will be found by a court to be inimical to the welfare of their own child such that his parental responsibility might be regarded as being at risk.
26. It is superficial to say that in this case D's father has not inflicted harm directly on his child and that therein lies a distinction with Re P which ought to have led to a different conclusion. D's father inflicted devastating emotional harm on the whole family including D which he continues to deny. It is difficult to see how in that circumstance and in the absence of any other positive factors, the father can be said to be capable of exercising 'with responsibility' his parental rights, duties, powers, responsibilities and authority.
27. It is likewise wrong to say that the mother has failed to satisfy the burden of proof of facts relating to father's alleged sexual recidivism. That is a submission that is becoming ever more prevalent in this court with the advent of parties who are not represented at first instance and who can be excused for not understanding the significance of either the burden or standard of proof. So the submission goes, if a party who has the benefit of a finding from the court has not been put to the obligation of proving it, what the court has done is to subtly reverse the burden of proof. I make it clear this is a distinct submission from one which calls into question whether someone has not had the benefit of procedural protections to which they are entitled.
28. Provided that procedural protections are identified and used by the court, the process of fact finding in family proceedings is quasi-inquisitorial. The welfare of a child may sometimes require a judge to make decisions about facts and/or value judgments that are not asked for by either party. A judge cannot shrink from doing so. That is his function. He must identify such questions and where necessary decide them. Although identified in relation to a different supervisory jurisdiction, the quasi-inquisitorial process to which I have referred was considered and approved in its use by the family courts in public law children proceedings and must as a matter of good practice be available to the same inquiry in private law children proceedings: In the Matter of W (A Child) [2013] EWCA Civ 1227 at [36]:

"Although it is conventional to speak of facts having to be proved on the balance of probabilities by the party who makes the allegation, proceedings under the 1989 Act are quasi-inquisitorial (quasi-inquisitorial in the classic sense that the court does not issue the process of its own motion). The judge has to decide whether sufficient facts exist to satisfy the threshold (the jurisdictional facts) whether or not the local authority or any other party agree. Furthermore, the basis upon which the threshold is satisfied is a matter for the judge, not the parties. To that end, if the judge directs that an issue be settled for determination, then absent an appeal, the issue will be tried whatever any party may think about that. As Pitchford LJ said in R (CJ) v Cardiff City Council [2012] 2 All ER:

[21] … The nature of the court's enquiry under the 1989 Act was inquisitorial. To speak in terms of a burden of establishing precedent or jurisdictional fact was inappropriate.

[22] … I am persuaded that the nature of the inquiry in which the court is engaged is itself a strong reason for departure from the common law rule which applies a burden to one or other of the parties … The court in its inquisitorial role, must ask whether the precedent fact existed on a balance of probability."

29. The final ground of appeal concerns the proportionality of the order made and the opportunity that there may be for applications to be mis-used by dissatisfied mothers. Mr Verdan submits that the judge should have considered what is said to be a lesser order, namely an order under section 91(14) CA 1989. An application under section 4(2A) CA 1989 and one under section 91(14) are of a materially different nature. The former is a substantive welfare question. It relates to the welfare of the child in respect of his upbringing. The latter is a procedural or adjectival protection that is ancillary to the substantive question. Its use may have the same effect but it also provides a fetter on a person's right of access to the court. The fetter is not absolute and can be issue or time limited (and usually is) but its imposition is not determinative of any ultimate welfare question but rather the less profound but sometimes critically important welfare implications of the continuation of the litigation or a part of it: Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [2000] Fam 15.
30. There is no hierarchy of orders such that one is less significant an interference in family life than the other, although Butler-Sloss LJ in Re P (above) described a section 91(14) order as being an order of last resort. Both orders can rightly be regarded as being Draconian in their effect. The orders are different because they have different purposes. It is perhaps important to note that although the judge concluded that it was unlikely that this father would exercise his parental responsibility consistently with the welfare of his son, he did not conclude that his access to the court should be limited. That was no doubt because the father has not used the processes of the court to adversely impact on his son's welfare. His use of the court has to date been entirely appropriate.
31. If and in so far as there is a complaint that the judge did not consider the proportionality of the order he made, it ought to be recorded that he did so by expressly considering at [66] and [67] of his judgment whether a section 91(14) order was appropriate in the context of the different purposes and effects of the orders available to the court. He concluded that a section 91(14) order was not appropriate and accordingly that father retained the right to make applications to the court without permission.
32. Mr Verdan submits that by acceding to the application on the facts of this case, the court is failing to guard against the application becoming "a weapon in the hands of a dissatisfied mother". In the 18 years since Re P was decided there have been no reported decisions of that kind and the changed social conditions over those years has not led to any reported increase or change in applications of this kind. There is nothing before this court which would suggest that there is a need to enhance the court's vigilance in that regard. Furthermore, even if this vigilance is sensible, which it is, there is no remedy that is suggested other than that the court should be careful. Baker J was very careful and I can see nothing that can be derived from this submission other than support for the general proposition that the court should take the most proportionate route to a welfare resolution that is consistent with the best interests of the child concerned. The application in this case was manifestly not being used as a weapon in the hands of a dissatisfied mother. The proceedings simply could not be regarded in that light.
33. Nothing I have said in this judgment should be construed to suggest that it has become or should become easier to remove an unmarried father's parental responsibility. I would strongly resist any move in that direction. It is vitally important to encourage the exercise of parental responsibility by fathers. Children have a right to that benefit.
34. For the reasons I have given, I would dismiss this appeal.

Lady Justice Gloster:

35. I agree.

Lady Justice Arden:

36. I also agree.