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CONTACT: CW V SG  EWHC 854 (FAM) – Termination of Parental Responsibility in Respect of an Unmarried Father
CW v SG was heard in the High Court on 12 April 2013 by Mr Justice Baker and dealt with a mother’s application to terminate a father’s Parental Responsibility for their 8 year-old son (“D”) and the father’s cross application to receive regular updates about his son.
The mother had 6 children, of which D was the youngest. The father had been imprisoned for 4 years following his conviction for serious sexual offences against D’s half sisters, aged around 9 and 10 at the time. While in prison he wrote to the mother to request contact with his son, however the terms of his licence upon release prohibited any contact between them father and D until June 2013.
Upon receipt of the letter, the mother moved the family away from the area to an undisclosed location and issued an application to terminate the father’s Parental Responsibility. The father claimed he was innocent of the criminal charges and issued a Specific Issue application seeking annual updates as to his son’s progress, to include photographs, school reports and details of any medical treatment received.
In the course of proceedings, the Court ordered a consultant clinical psychologist to be instructed and provide expert evidence as to any risk the father posed to the child in light of his criminal convictions and psychological profile.
The main issue for Baker J to consider was if the circumstances of the case justified the termination of the father’s Parental Responsibility and if any termination was a breach of his article 8 and 14 rights.
The case concerned “D”, an eight year old boy. D’s parents had started a relationship in 2002. She gave birth to D, the youngest of her 6 children, in August 2004 and the father’s name was registered on D’s birth certificate. As a result, the father had Parental Responsibility for D in accordance with s.4 Children Act 1989. The Parties’ tempestuous relationship came to an end and he moved out of the family home. Following the father’s departure from the home, two of the mother’s elder daughters accused him of sexually abusing them. These allegations were subsequently retracted and the Parties later reconciled and he moved back in. They then made further allegations against him and he was arrested and charged with serious sexual offences against the girls. The criminal case proceeded to trial with the father initially pleading not guilty but changing his plea to guilty on the third day before the young victims gave their evidence. He was given a custodial sentence of 4 years.
The consultant psychiatrist in the criminal proceedings found that the father had a history of drug and alcohol abuse and that he had been sexually abused as a child by his brother but that he did not suffer from any form of mental impairment. The criminal Judge concluded that there had been a grave breach of trust by the father at a time when the mother was struggling with depression as well as the demands of looking after their new-born son; a fact that the father had exploited to provide himself with opportunities to abuse the girls while their mother was not able to protect them. As a result of his actions, the girls had suffered severe emotional damage and the mother was also badly affected and held herself responsible for the harm inflicted on her daughters.
While in prison, the father wrote a letter to the mother, care of her former solicitors, expressing a wish to have contact with D but stating that he did not wish to be involved with the rest of the family. The mother decided to move the family away from the area in which they had been living and, upon the father’s release from prison she immediately issued an application for an Order terminating the father’s Parental Responsibility for D. The father claimed that he was actually innocent in the criminal proceedings and issued a Specific Issue Application for an Order requiring the mother to send him progress reports on D, to include photographs and medical and schooling updates.
During the course of proceedings, Baker J concluded that a further psychological report was required to assist in the determination of the matter and a new consultant clinical psychologist (Mr Roy Shuttleworth) was instructed by the father to provide a report examining the danger posed by the father to D in the light of his criminal convictions and his psychological profile. This psychologist concluded that the father posed a low risk of sexual abuse to the child due to the fact that he was a boy and also that few of the many sexual offenders he had come across often had abused their own children. The father maintained throughout the assessment that he was not guilty in relation to the criminal charges and that he had only pleaded guilty in Order to spare the girls the trauma of giving evidence. In cross- examination, however, the father accepted that his convictions were true convictions and that he would not be asking the Court to reconsider these convictions. Baker J listed the matter for Final Hearing, where he was able to consider statements from both parents as well as a CAFCASS report in addition to the psychologist’s report.
A mother automatically has parental responsibility for her child, as do married fathers. Section 4 Children Act 1989 (as amended) lays out the methods by which unmarried fathers can acquire parental responsibility:
“(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.
(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 ….
(2A) A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the Court so Orders.
(3) The Court may make an Order under subsection (2A) on the application
(a) of any person who has parental responsibility for the child… “
The acquisition of parental responsibility by a second female parent or step-father is similar, and the specific provisions for these parties are laid out in Section 4ZA and Section 4A respectively.
It is notable, that despite the changes in legislation which have broadened the scope of Parental Responsibility, Parliament has chosen to retain the provision for that right to be terminated by Order of the Court. Interestingly, it is only those who have acquired Parental Responsibility through one of the methods laid out in Section 4, 4ZA or 4A who can have that responsibility revoked through an Order of the Court. Section 4(2A) states:
A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the Court so Orders.
As such, it is only those who have not automatically acquired Parental Responsibility, who can be deprived of this legal status in this way and not mothers or married fathers.
Despite the statutory provisions set out above, it is very unusual for Parental Responsibility to be terminated by Court Order. The judgment of Baker J only refers to one other reported case – Re P (Terminating Parental Responsibility)  1 FLR 1048. This case, before Singer J, concerned a baby whose unmarried parents had signed a Parental Responsibility agreement. The baby, then 9 weeks old, was admitted to hospital with serious injuries and the father was charged with causing these injuries and given a custodial sentence. The mother applied to terminate his Parental Responsibility and her application was granted, though Singer J stated that obtaining and retaining Parental Responsibility should be encouraged and that once granted it should not be lightly withdrawn.
“..one can postulate as a first principle that parental responsibility once obtained should not be terminated in the case of a non-marital father on less than solid ground, with a presumption for continuance rather than for termination.”
Singer J also stipulated that the burden of proof in such an application rests firmly with the applicant mother and that the Court should apply Section 1 of the Children Act, ensuring the welfare of the child is paramount.
In CW V SG the father contended that the Court should be cautious of following the decision in Re P as it was a decision that was almost 20 years old and it was decided before the amendments to s.4 to extend Parental Responsibility to unmarried fathers. The father also argued that s 4(2A) was incompatible with articles 8 and 14 of the European Convention on Human Rights, because it is discriminatory towards unmarried fathers in a way that infringes their rights to family life, in comparison to married fathers or mothers, who cannot lose Parental Responsibility in the same way. Baker J considered the case of Smallwood v UK (1999) 27 EHRR 155 which evaluated the distinction in treatment of unmarried fathers with regards to the acquisition of Parental Responsibility, and held that there was no breach of the applicant father’s rights due to his gender or marital status.
It was stated in Smallwood that the relationship between fathers and their children:
“..varies from ignorance and indifference to a close stable relationship indistinguishable from the conventional family unit..” and “..For this reason the Court has heard that there exists an objective and reasonable justification for the difference in treatment between married and unmarried fathers with regard to the automatic acquisition of parental rights.”
Baker J stated that the decision in Smallwood remained ‘firmly in line with the current legal and social context of unmarried fathers’ but he did not elaborate further on this conclusion.
Baker J, recognised the articulate presentation of the submissions from the father’s counsel, but found that both Re P and Smallwood were still reliable authorities. He concluded that the approach set out in Singer J’s judgment in Re P was the correct approach to be adopted upon an application to terminate Parental Responsibility.
Baker J rejected the evidence provided by the clinical psychologist, who considered that the father did not pose a risk to D ‘from a sexual point of view’, concluding that the psychologist’s opinions were ‘complacent, unreliable and at times misleading’.
The Judge was, however convinced by the view of the CAFCASS officer, who reported that D did not want contact with his father, and that there would be difficulties if the father tried to exercise his Parental Responsibility.
Baker J found that the father had lied several times when giving his evidence whereas he found the mother to be a reliable witness. This, coupled with the Judge’s disagreement with the psychologist’s evidence and his focus on the factors within the Section 1(3) welfare checklist, with particular emphasis on D’s emotional needs, the harm suffered by and risk of harm to D, led him to grant the mother’s application to terminate the father’s Parental Responsibility and dismiss the father’s application for a Specific Issue Order. On CAFCASS’s advice, the father was allowed to write a letter to his son, under CAFCASS’s supervision, for the mother to keep and give to the boy in the future if he asked about his father.
CW V SG provides a useful clarification on the law in this respect, confirming that Re P is still good law and the correct approach to be followed in such applications. It does seem, however, that there is still a level of uncertainty in relation to the case of Smallwood and its application in today’s social circumstances where unmarried fathers, step-fathers and indeed second female parents are becoming increasingly common. Does section 4 of the Children Act 1989 discriminate against these more ‘modern-day’ parents? It remains untested in an application against a married father but it will be interesting to see what the outcome will be.