When is a parent not a parent?

CW V SG [2013] EWHC 854 (FAM)

Mr Justice Baker recently heard a very rare application in the High Court by a mother to terminate the father of her son’s parental responsibility (PR).

Legally, if you have PR you have all the rights, duties, powers and responsibilities that a parent would usually have in relation to a child.  Mothers automatically acquire parental responsibility at the birth of a child.  Fathers automatically acquire it if they are married to the mother at the birth. Unmarried fathers, step parents and same sex parents can subsequently acquire PR by a variety of means, including by entering into a parental responsibility agreement, or by being named on the birth certificate. Only a parent who has subsequently acquired PR can have this right revoked by court order.  However, judges have been clear that revocation should not be encouraged or made lightly.

This family had a particularly traumatic history.  The mother had six children, of which the child in question was the youngest.  The father was charged and convicted of serious sexual offences against two of the mother’s daughters (half sisters to the son).  He initially submitted a plea of innocence but changed his position on the third day of the trial, just prior to the girls giving evidence.  He was imprisoned for four years and was subject to a licence which prohibited contact until June 2013.

Whilst he was in prison the father wrote to the mother’s solicitor expressing a wish for contact with the son.  In response the mother moved the family wholesale to an undisclosed location.  As soon as the father was released she applied to the court to terminate his PR.

The father cross applied, issuing a specific issue application for annual updates. He resisted the mother’s application and suggested that it was in breach of his Article 8 (family and private life) and Article 14 (prohibition against discrimination) rights.  He also suggested that the ‘no order’ principle should be applied and that the default should be that his PR continued rather than being revoked.  The father maintained throughout the new proceedings that he was innocent of the previous charges. He claimed that he only plead guilty historically to avoid the girls having to give evidence.

A psychologist was instructed to prepare a fresh report on the father.  His evidence supported the father’s position, concluding that he was a low risk to the son for a variety of reasons, primarily as he was male, and that in his experience parents rarely abuse their own children.  A CAFCASS officer (from the child and family court advisory service) was similarly instructed to prepare a report.  This was less favourable and suggested that the son did not want contact with his father, it would be difficult to manage and he was at risk of emotional harm.

The case went to trial.  In the course of the proceedings, the mother’s counsel relied on the only reported case in this area ‘Re P’ dating from 1995. In this similarly distressing case a father’s PR was revoked after he caused serious injuries to his nine month old child.

In response the father’s counsel suggested this case should be relied on with caution given it’s age, and in particular given that it predated the amendment to the law which allowed unmarried parents to acquire PR. He also argued that the act itself was discriminatory towards unmarried fathers, as against mothers and married fathers, who cannot have their PR removed.

The judge was therefore faced with making a very difficult decision.  Having heard evidence from both parents he concluded that the mother was reliable.  He found that the father lied in several places in his evidence (for example, he conceded in cross examination that his original convictions were true despite his prior assertions to the contrary).    The judge rejected the evidence from the psychologist, who he said was complacent and unreliable.  In contrast he was convinced by the evidence from CAFCASS which he found to be perceptive.  Having reviewed the welfare checklist, with emphasis on the risk of harm and the son’s emotional needs, the judge granted the mother’s application and rejected the father’s.  He found the fact the son had already suffered harm, together with his overwhelming need for emotional security, to be the magnetic factors. These  outweighed the father’s Article 8 rights.  The judge also applied the ‘Re P’ principle whereby he considered whether, if the father did not already have PR, he would be granted it now.  He concluded there was no way that this would occur.

This case does provide very useful clarification on the law surrounding this very delicate issue and confirms the historic position that in that in extreme circumstances it is still possible to terminate PR. The Human Rights Act works in both directions!

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