The High Court decision of DW (A Minor) & Another v SG 2013 and the possible revival of applications to terminate a father’s parental responsibility (PR). Has the bar been set high enough?
A long time ago, 1995, an application to terminate a father’s parental responsibility was heard in the High Court, and that had been the only authority on the point since that time. Re P (Terminating Parental Responsibility)  1 FLR 1048
The grounds were that during the course of care proceedings, it had emerged that the father had caused the serious injuries to the child, and the mother no longer wanted him to have parental responsibility, made an application and the Court granted it.
[Now, of course, that course of events, though tragic, is not exceptional in care proceedings – and one might well argue that finding out that a father had not behaved well, had even been abusive, ought not to result in him being stripped of his parental responsibility – at least not unless the child was being adopted, and I know many of my readers think not even then.
This is particularly so, since the Children Act 1989 provides a statutory mechanism for the mother to apply to remove the father’s PR, but NOT the reverse. The mother’s PR is sacrosanct, and is only removed by the making of an adoption order. It seemed terribly wrong that the father’s PR could be removed by an application, pace Re P, with just some evidence that the father was an abuser]
Most practitioners considered that to be a quirk, an anomaly, and a decision that wouldn’t actually stand up to scrutiny of the Human Rights Act if it were looked at again today.
Most practitioners (myself included) would have been wrong.
The father in DW was not, one would have to say, a very nice person. He was a man who had been on trial for ten counts of sexual abuse and who only pleaded guilty the day before his children were due to give evidence. He received a four year custodial sentence. The father, throughout the private law proceedings maintained that he was innocent of all charges and had only pleaded guilty to protect the children (although finally advanced a position that he accepted that the convictions were made and he could not go behind them)
So, not a man who would be on the shortlist for any father of the year award, and in writing this piece, I am clearly not defending anything that he has done, or saying that he should play any part whatsoever in the children’s lives. I am merely doubtful that removing his parental responsibility (no matter how diminished his exercise of it would rightfully be in practice) is fair. If you asked me should he have done twenty years in prison rather than four, I’d be right there with you signing a petition to that effect.
The Judge looked obviously at the statutory provisions (underlining mine) :-
Section 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.
(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… “
Raising the interesting question that a mother can apply for a father’s PR to be withdrawn, and oddly the father can apply for the father’s PR to be withdrawn, but neither can apply for the mother’s PR to be withdrawn.
The Court also looked at the existing authority of Re P
16. “I have to say, notwithstanding the desirability of fostering good relations between parents and children in the interests of children, I find it difficult to imagine why a court should make a parental responsibility order if none already existed in this case. I think the continuation of a parental responsibility agreement in favour of the father in this case has considerable potential ramifications for future adversity to this child. I believe it would be a message to others that he has not forfeited responsibility, which to my mind it would be reasonable to regard him as having done. I believe that it might be deeply undermining to the mother and her confidence in the stability of the world surrounding (the child).”
17. Later, he added (on page 1054):
“I believe that there is no element of the band of responsibilities that make up parental responsibility which this father could in present or in foreseeable circumstances exercise in a way which would be beneficial for the child. I therefore conclude that it is appropriate to make an order as sought under section 4…bringing to an end the parental responsibility agreement entered into….”
For my part, I think there is a conflation there of two issues. If the father in this case DID not have PR, and one were considering his application for PR, I can see compelling reasons not to give it to him. But what the Court is doing is removing PR from a person who already has it (knowing that the only other mechanism for this is adoption, the most draconian order a family court can make) .
I think that removing PR from a person who has it is a big deal, and requires something much more compelling – if indeed section 4 as drafted is compatible with human rights (given that it is framed entirely on gender terms, I just don’t think it is). And moreover, that although the fathers in these two cases appear to be pretty unsympathetic characters, the way the decisions are framed mean that fathers who have done less bad things could lose their PR.
I shall be fair – the alternative way of framing this argument is :-
- Parliament put in place a mechanism that allowed a mother to apply to terminate the PR of a father , and a mechanism that allowed the Court to terminate that
- If you are going to have that power, there must be circumstances in which it can be used
- The father’s conduct in both of these cases was reprehensible, and if you aren’t going to allow the application in these cases, what sort of case are you going to allow it?
- If it is only a theoretical power, what is the point of it? And as far as we can see, it is a power that has only been used on 3 occasions in nearly twenty five years, so it is hardly a landslide.
[The problem with playing devil’s advocate, is that the devil is persuasive. I shan’t do that again in a hurry]
The Court in DW clearly considered the case very carefully (and I shall come onto some of the evidence in a moment) and also took into account the human rights issues, rejecting the father’s claims that section 4 of the Act was discriminatory if it penalised ‘bad conduct’ for fathers but not mothers.
I am troubled by this, since I think that the facts in these two cases, and the decisions as reported, do open the door to a lot of fathers having applications for their PR to be terminated.
I don’t think that the bar here was set very high, bearing in mind the importance of the issue at stake. And not least because if the roles were reversed, a mother would be at no risk of losing her PR.
Looking at the bar, considering what’s at stake, it seems to be more fit for limbo dancing than pole vaulting.
[I did look at illustrating this, and my quick trawl of google images located a David Hasselhoff Limbo-Dancing album. And he has his shirt off on the front cover… I have resisted this, as likely to place me in excess of the EU Regulations on Cheese-Content for Blogs]
It is however, a judgment that was careful to take into account various factors and placed the welfare of the child at the heart of the case (and once the Court rejected the argument that section 4 was incompatible with article 8, was the only rational conclusion)
- In my judgement, the magnetic factors in this case are D’s emotional needs, the harm he has suffered, and the risk of future harm. As a result of the turbulence and disruption endured by this family during the mother’s relationship with the father, and the period leading up to the father’s criminal trial, all members of the family, including A, C, the mother and D have suffered harm of varying sorts and to a varying degree. So far as D is concerned, whether or not he witnessed the father perpetrating any abusive acts on A, I accept that he has suffered emotional harm as a result of the harm inflicted by the father on other members of his family. I accept that, because of his parentage, D’s position in the family is difficult and that there is a risk of his suffering further harm and stigma if he continues to be perceived and treated in any way as the son of this man who perpetrated acts of sexual abuse on his older siblings.
- In addition, I take into account D’s expressed wish to have no involvement with his father. As he is only aged eight and a half, the weight to be attached to those wishes is limited. I accept that to a considerable extent his express wishes have been influenced by his mother and siblings. Nevertheless, I find that they are rooted in the reality of his life.
- I also take into account the capacity of the mother to meet D’s needs. I find that were the father to retain parental responsibility, she would be placed under very great strain, given the probability as I find that the father would subsequently apply for contact, and that he would seek to be further involved in D’s life. Equally, given all the harm that the father has inflicted on the family, I accept that the mother would find it well-nigh impossible to send a regular report to him concerning D’s progress. I find that imposing such an obligation on her would impinge on D’s emotional security.
- All these factors point towards an order terminating the father’s parental responsibility and dismissing his application for a specific issues order. On the other side of the scales, I take into account the fact that, as part of his background, D is the biological child of the father, and that as an aspect of his emotional needs he, like every child, should grow up with some understanding of his origins and, whenever possible, a relationship with each biological parent. But in certain circumstances those needs must give way to more important considerations, in particular, the need for emotional security. I conclude that D’s emotional security would be imperilled were the father to continue to have any further involvement in his life. Equally, whilst acknowledging that as an aspect on their respective Article 8 rights, both D and his father have a family life together, that aspect is in this case outweighed by D’s overriding need, as part of his Article 8 rights, to security within his family.
- Miss Townshend sought to persuade me that Re Pwas distinguishable on the facts of this case. On the contrary, and notwithstanding the factual differences between the two cases, I find that it provides invaluable guidance. Following Singer J’s example, I look to see to what extent the well established factors for making parental responsibility orders would be satisfied in this case. I accept that, although the father showed a degree of commitment to D when living in the household, that was wholly undermined by his actions in perpetrating serious sexual abuse on A and C, and this has been compounded by his subsequent denials up to the third day of the trial and renewed assertions that he is not guilty. So far as attachment is concerned, whilst there was undoubtedly some degree of attachment between D and his father when he was a baby, there is no attachment now as he has not had any contact for several years. As indicated above, I find there is force in the mother’s concerns that the father is motivated by wishing to become more involved in D’s life, to the detriment of the family including D. As in Re P, I find that, if the father did not have parental responsibility, it is inconceivable it would now be granted to him, and that this is a factor I should take into account when considering this application to terminate his parental responsibility. Furthermore, like Singer J in Re P, I find that in this case there is no element of the bundle of responsibilities that make parental responsibility which this father could in present or foreseeable circumstances exercise in a way which would be beneficial for D.
The evidence in this case was interesting, since father instructed a clinical psychologist, Mr Shuttleworth, to conduct an assessment.
I am going to simply quote extracts from the judgment and let them speak for themselves – I do not know Mr Shuttleworth (and I suspect from reading this judgment, I am unlikely to get to know him). It may be that this judgment does him a grave disservice.
- In his report, Mr Shuttleworth was critical of Dr Obuaya’s psychiatric assessment carried out in the course of the criminal proceedings, in particular, his failure to identify what Mr Shuttleworth regarded as the clear symptoms of ADHD. Mr Shuttleworth went so far as to question whether Dr Obuaya had been right in concluding that the father had been fit to plead.
- On the issue of sexual risk, as stated above, the father maintained throughout the assessment that he was innocent of the offences to which he had pleaded guilty. Mr Shuttleworth noted that in prison he had been assessed as ‘presenting a low risk of recidivism’. In his assessment, Mr Shuttleworth stated that ‘there is no evidence that he has any sexual deviations’ and concluded (contrary to the observations of the sentencing judge) that there had been no escalation of his sexual offending. Mr Shuttleworth recorded that the father denied having been sexually abused by any member of his family, contrary to statements that appeared in the father’s medical records.
- Mr Shuttleworth concluded:
“I do not believe that he would be a risk to a child from a sexual point of view. There may be more doubts if he was looking after a girl because of the convictions, however there is no indication that he ever had any particular interest in a male….While I do not believe there is any evidence that he is a risk, his recent behaviour, particularly in prison, indicates that he is fully willing to enter into any programme which might involve him proving his parental skills. He will obviously stop short of agreeing to claim responsibility for any alleged sexual crime in order to enter into any of those programmes.”
“My overall impression is that he has been amazingly tolerant and accepting of his ex-partner’s fears in not demanding more contact, although I would presume that he would like to have this sometime in the future when his reputation has hopefully been rehabilitated.”
- In oral evidence, Mr Shuttleworth drew attention to the father’s claim that his criminal lawyers had advised him to plead guilty to avoid a longer sentence. Mr Shuttleworth was not convinced that the father was a sexual offender and expressed the view that there were grounds to challenge the reliability of the conviction based on his doubts about the father’s fitness to plead, the failure to diagnose ADHD, and ‘the way the trial was conducted’. Cross-examined on behalf of the mother, Mr Shuttleworth stated that, if the father had been abused by his brother, as stated in the father’s own medical records, and if he had been involved in sexual activity with A and C, he would pose a risk to D that Mr Shuttleworth described as ‘moderate’, but he added ‘other people in prison who have more experience of these things assessed this risk as low’. When invited to consider specifically the risk to D, Mr Shuttleworth said:
“Even if he’s had sex with children, I’ve come across a lot of paedophiles who do not abuse their own children.”
Mr Shuttleworth added that ‘there’s an assumption that people who are paedophiles are unable to control their impulses’. He said that he found the father to be a very warm and caring man who cares very much for his children.
And the Judge’s conclusions in relation to this evidence
50. In light of my findings about those matters I turn to consider the evidence of Mr Shuttleworth. I listened to that evidence with increasing concern. I regret to say that I have found his opinions naïve, complacent, unreliable and at times misleading. His reluctance to accept the convictions as the factual basis for his assessment was a dereliction of his duty as an expert witness. His statement in his report that there was no evidence of any “deviations” was simply untenable given the existence of the convictions for ten offences of sexual abuse. His various statements about paedophiles quoted above runs contrary to all the understanding about the dangerous and deceitful behaviour of paedophiles which this court has come across many times over the years. His assessment of risk was, in my view, worthless, and I reject it.