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Home > Judgments > 2013 archive

CW v SG [2013] EWHC 854 (Fam)

Application by mother for an order terminating father's parental responsibility and by father for a specific issues order requiring the mother to supply annual reports on child's progress. Mother's application granted, father's dismissed and consequential directions given.

The applicant mother and respondent father met in 2002 and started their relationship almost immediately. D was born in 2004. The applicant had five other children. The parties' relationship was very difficult. They had a number of separations and then reunited. The respondent was using illegal drugs during most of the relationship and the applicant suffered from depression. The applicant's eldest two children made allegations of sexual abuse against the respondent at a number of stages throughout the relationship. Eventually the police became involved in 2008 which led to the prosecution of the respondent.

The respondent pleaded guilty to three offences of sexual assault of a child under 13, two offences of causing or inciting a child under 13 to engage in sexual activity, one offence of sexual activity with a child under 16 and one offence of causing a child under 13 to engage in sexual activity. He was sentenced to a total of 48 months imprisonment. He was released at the halfway point on 24th June 2011.

During their relationship, the respondent had become a carer not only of his own child but also the applicant's other five children and devoted considerable time to their upbringing. He was a very active part of the child's life until he was arrested. The respondent had made several  and various attempts to remain involved in the child's life since his conviction. While in prison, the respondent approached solicitors for advice about how to obtain contact with the child. They made several attempts to contact the applicant and she refused to allow any form of contact between the respondent and the child.

Immediately upon his release from prison, the applicant issued an application for the termination of his parental responsibility.  The respondent applied for a specific issue order requiring the mother to supply annual reports as to the child's progress.

The only reported case on the termination of parental responsibility dates back to 1995: Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048 at 1053.  In that case Singer J allowed an application to terminate parental responsibility (acquired by a parental responsibility agreement) in relation to a father who had been sent to prison for causing serious injuries to his child. The judge held that the order was justified as the father had "forfeited" his parental responsibility and, in considering the merits of the application for parental responsibility in these circumstances, a court would not have granted the application.

Counsel for the father argued that Re P could be sharply distinguished on both the facts and the law, and in particular because Re P was decided before the Adoption Act 2002 and Human Rights Act 1998 and therefore could not necessarily be read in line with the current statute. In addition, it was argued that the 'no order' principle ought to be applied, and moreover that the presumption of continuance of parental responsibility, rather than termination should be followed as the first principle in the case.

The other argument which was pursued by the father was that the that the application of section 4(2A) of the Children Act (CA 1989) is incompatible with Article 8 and 14 of the European Convention on Human Rights (ECHR). An unmarried father can have his right to parental responsibility terminated by order of a court by section 2A of the Act, whereas a married father's parental responsibility cannot be terminated. In the case of Smallwood v UK, the ECtHR found that there was an objective and reasonable justification for the difference in treatment between unmarried and married fathers. Counsel for the father sought to distinguish this case on basis of the age of the case (the case was decided 14 years ago) and given the social and legal context of unmarried fathers in families today. It was argued that the law was progressed by the 2002 Act to allow for unmarried father's to "automatically" acquire parental responsibility by virtue of being named on the birth certificate. The change in the law made it easier for unmarried fathers to gain parental responsibility and therefore it was submitted that it could not be an objective and reasonable justification for the discrimination.

The judge found that the decision in Smallwood was still good law and that its conclusions remained firmly in line with the current legal and social context of unmarried fathers.

Both mother and father gave evidence at the hearing. A jointly instructed clinical psychologist also gave evidence that the father had a "very low risk of sexual recidivism". The judge rejected the psychologist's views and found him an incredible witness. The court also heard from a CAFCASS Officer who had interviewed both parents and the child. She recommended an order to terminate parental responsibility and alternatively sought a Section 91(14) order. The judge was persuaded by the CAFCASS Officer's evidence that the father was likely to make further applications to the court and that this would affect D's emotional stability. However, he declined to make a s. 91(4) order.

The judge concluded that the "magnetic factors" in this case were D's emotional needs, the harm he had suffered, and the risk of future harm. He concluded that D's emotional security would be imperilled were the father to continue to have any further involvement in his life.

The judge followed the principles as set out in Singer J's dicta in Re P. As in Re P, he found that that if the father did not have parental responsibility, it is inconceivable that it would now be granted to him, and that this is a factor that a judge should take into account when considering an application to terminate his parental responsibility. Furthermore, like Singer J in Re P, the judge found that in this case there was 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.

Finally, he refused the father's application for a specific issue order.

Summary by Saoirse Townshend, barrister, 36 Bedford Row
___________________________

Neutral Citation Number: [2013] EWHC 854 (Fam)
Case No: BH11P00251

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 12/04/2013

Before :

THE HONOURABLE MR JUSTICE BAKER
- - - - - - - - - - - - - - - - - - - - - - 

In the Matter of the Children Act 1989
And in the matter of DW (a minor)

Between :

CW  Applicant

- and - 

SG Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Andrew Lorie (instructed by Grenville J Walker ) for the Applicant Mother
Saoirse Townshend
(instructed by Galbraith Branley) for the Respondent Father

Hearing dates: 25th and 26th February 2013
- - - - - - - - - - - - - - - - - - - - -

Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................

THE HONOURABLE MR JUSTICE BAKER
This judgment is being handed down in private on 12th April 2013. It consists of 17 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

The judge hereby gives leave for this judgment to be reported. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the parties and all children mentioned in the judgment must be strictly preserved.

The Honourable Mr. Justice Baker : 
1. This reserved judgment is delivered in respect of two applications concerning a boy, D, born 7th August 2004, which I heard last term on circuit in Bournemouth. The first application is by D's mother for an order terminating his father's parental responsibility. The second is an application by the father for a specific issues order requiring the mother to supply annual reports on D's progress.

Background
2. The parties met and started a relationship in 2002. At that point, the mother already had five children aged between 7 and 1. She became pregnant again and gave birth to D on 7th August 2004. The father's name was registered and appeared on D's birth certificate. As a result, he has parental responsibility pursuant to section 4 of the Children Act 1989 as amended.

3. The relationship between the parents was turbulent and they separated at the end of 2005. Following the separation, the mother's two elder daughters, A and C, then aged about 10 and 9, told her that they had been sexually abused by the father but afterwards retracted the allegations. The parties were reconciled and the father moved back into the family home. Subsequently, however, after the girls repeated their allegations, the police were informed, and interviewed the girls under the Achieving Best Evidence procedure. The father was arrested and charged with a series of sexual offences involving both girls.

4. In psychiatric reports prepared for the criminal proceedings, a consultant psychiatrist, Dr Obuaya, having examined the father and read his medical records, found that he had a history of drug and alcohol abuse and depression. He also noted that the medical records disclosed that the father had alleged he had been sexually abused by a member of his family. Dr Obuaya concluded, however, that the father did not suffer from any form of mental impairment.

5. The criminal case proceeded to a trial on ten counts – two counts of penetration, one of causing or inciting a child to engage in penetrative sexual activity; two of having sexual activity with a child; two of causing or inciting a child to engage in sexual activity; and three sexual assaults – but on the third day, just before the girls were due to give evidence, the father changed his plea to guilty. He subsequently received a custodial sentence of four years imprisonment. In passing sentence, the learned judge said inter alia:

"When children are harmed in this way within a family, a grave breach of trust is always involved. However, the circumstances relating to C involve particularly despicable exploitation by you of the situation in which you found yourself. At the time when you sexually assaulted C, her mother was coping with the demands of your new born son and suffering from depression. She was in no state to protect her daughters, a situation which obviously provided you with opportunities to be alone with C."

6. Manifestly, both A and C suffered very considerable emotional harm as a result of these assaults which took place over a period of twenty months. The mother too was deeply affected and came to blame herself for what happened. Subsequently, she met and married another, S, with whom she and the children still live.

7. In July 2010, the father wrote a letter to the mother's former solicitors from prison, referring to his parental rights in respect of D, and stating that he wished to have contact with D, although he added that he did not want any other involvement with the family. Thereafter, the mother and the family left the area in which they had been living and moved to a location unknown to the father.

8. The father was released on licence in June 2011. The terms of his licence, which expires on 24th June 2013, included a restriction on any contact with D.

9. On 16th July 2011, the mother filed an application for an order terminating the father's request for parental responsibility. Directions were given by District Judge Hurley on 29th July 2011. At that hearing, the father stated that he was innocent of all charges in respect of A and C. The District Judge listed the final hearing in November 2011 and made further directions. Shortly before the hearing in November, the father filed an application for a specific issues order requiring the mother to provide annual updating reports on D's progress, including photographs, school reports and details of any medical problems and treatment. At the hearing on 24th November, District Judge Weintroub decided that the matter should be transferred to the High Court because the application to terminate parental responsibility appeared to involve a new or unusual point of law. Thus the matter came before me in March 2012. I concluded that a further psychological report on the father was necessary to enable me to determine the application and I therefore gave permission to the father to instruct Mr Roy Shuttleworth, a consultant clinical psychologist, to prepare a report assessing inter alia whether the father posed any risk to D in the light of his criminal convictions and psychological profile.

10. Mr Shuttleworth duly filed his report dated 29th May 2012 in which he concluded that the father presented a low risk of sexual abuse to D. I shall consider this assessment, and Mr Shuttleworth's oral evidence, later in this judgment. At this stage, I merely record that the father maintained throughout the assessment that he was innocent of all the charges involving A and C and that he only pleaded guilty in order to spare the girls the ordeal of giving evidence. When the matter came before me in July 2012, however, the father accepted through his counsel that the convictions 'are true convictions and he does not invite the court to reconsider those convictions'. I therefore listed the matter for a further hearing before me in February 2013.

11. For that hearing, I had the benefit not only of the statements from the parents and Mr Shuttleworth's report but also a report from the CAFCASS officer Alison Evans.

The Law
12. Section 4 of the Children Act 1989 as amended provides (insofar as relevant to these proceedings):

"(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)  the becomes registered as the child's father under any of the enactments specified in subsection (1A);

(b)  the 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… "

13. Section 4 as amended includes the provisions inserted by Parliament via the Adoption and Children Act 2002 which were designed to extend parental responsibility to an unmarried father if his name is registered on the birth certificate at the registration of the child's birth. In practice, an unmarried father cannot register the birth without the mother's consent. Thus, the amended provision can be seen as an extension and simplification of the existing provisions which enable unmarried fathers to acquire parental responsibility under a parental responsibility agreement entered into with the mother. What is particularly notable, however, is that Parliament has chosen to leave in place the provision, now contained in section 4 (2A), for an unmarried father who has acquired parental responsibility in any of the circumstances in section 4 (1) to be deprived of that responsibility by order of the court.

14. It is very unusual for parental responsibility to be terminated by order of the court. In fact, the extensive researches of counsel and the court have only identified one reported case concerning such an application, namely a decision at first instance of Singer J in Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048.

15. That case concerned a baby whose unmarried parents had signed a parental responsibility agreement. At the age of 9 weeks, the baby was admitted to hospital with a number of serious injuries and was subsequently taken into care and placed with foster parents. The father was charged with offences in respect of the injuries and sentenced to a term of imprisonment. The mother made an application for an order to terminate the father's parental responsibility under section 4 of the Children Act. The application was allowed by Singer J who in the course of his judgment said (at page 1052):

"I start from the proposition that parental responsibility – both wanting to have it and its exercise – is a laudable desire which is to be encouraged rather than rebuffed. So that I think 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.

The ability of a mother to make such an application therefore should not be allowed to become a weapon in the hands of the dissatisfied mother of the non-marital child: it should be used by the court as an appropriate step in the regulation of the child's life where the circumstances really do warrant and not otherwise.

I have been referred in outline to four authorities as to the circumstances in which a court will make an order for parental responsibility [here the learned judge identified the well-known authorities dealing with such applications]….

Such applications for parental responsibility orders are governed by the considerations set out in section 1(1) of the Children Act, namely that the child's welfare is the court's paramount consideration. I can see no reason why that principle should be departed from in considering the termination of a parental responsibility order or agreement.

Key concepts to the consideration of the making of an order are evidence of attachment and a degree of commitment, the presumption being that other things being equal a parental responsibility order should be made rather than withheld in an appropriate case
."

16. Applying those principles to the facts of that case, Singer J concluded (at page 1053):

"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…."

18. In an attractively presented argument on behalf of the father, Miss Townshend submits that this court should be cautious about following this authority in this case for the following reasons. First, it is an authority at first instance dating from nearly twenty years ago which was decided before the amendment of section 4 introduced by the 2002 Act. Miss Townshend submits that, as demonstrated by that amendment, the importance of extending parental responsibility to unmarried fathers has become much more widely accepted since 1995. In those circumstances, the court should be more wary about removing parental responsibility from those on whom it has been bestowed by law.

19. Secondly, Miss Townshend submits that section 4(2A) is incompatible with articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms since it discriminates against unmarried fathers in a way that infringes their rights to family life. On this point, Miss Townshend faces a difficulty in the form of a decision of the European Court of Human Rights, Smallwood v UK (1999) 27 EHRR 155. In that case, the European Court considered whether the termination of an unmarried father's parental responsibility by an English court was in breach of Article 8 and Article 14. The father submitted that he was discriminated against by having his parental responsibility terminated by virtue of his marital status and by virtue of his sex since there is no power whereby an unmarried mother's parental responsibility can be terminated. The court accepted that the father's Article 8 rights were engaged but concluded that there was no breach of his rights either on the basis of his marital status or of his gender. As to marital status, the court commented:

"The Commission recalls that the relationship between natural father's and their children varies from ignorance and indifference to a close stable relationship indistinguishable from the conventional family unit (McMichael v UK (1995) 20 EHRR 205). 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 automatic acquisition of parental rights…

In particular, the Commission notes that notwithstanding the apparently wide definition of 'parental responsibility' in section 3(1) of the Children Act, it does not necessarily entail contact rights, as evidenced by the applicant's position after those rights have been rescinded. The Commission recalls that in its 1986 report the Law Commission considered that, if courts were unable to rescind parental responsibility orders when this is found to be in the best interests of the child, they would be reluctant to make such orders and mothers would be more likely to oppose their provision. Moreover, the Commission recalls that parental responsibility may be granted again should a further request be made by the applicant. Having regard to the margin of appreciation according to Contracting States, the Commission therefore, considers that the difference in treatment between married and unmarried fathers with respect to the rescission of parental responsibility has an objective and reasonable justification. As a result, no appearance of a violation of article 8 in conjunction with article 14 of the Convention is disclosed. "

20. Miss Townshend submits that the Smallwood decision is out of date in the light of the changes in the social and legal status of unmarried fathers in the years since that case was decided.

21. Finally, Miss Townshend argues that, if Re P is still a reliable authority, it is distinguishable from the facts of this case.

22. Notwithstanding the articulate way in which Miss Townshend put her legal submissions, I am in no doubt that Re P, whilst not strictly binding on this court, is a clear authority which points the way to be followed by the court considering its powers under what is now section 4(2A). Singer J held that there is a presumption that, once granted, parental responsibility should not lightly be withdrawn, that the burden of proof rests firmly with the applicant mother, and that, in considering such an application, the court should apply section 1 of the Children Act and give paramountcy to the child's welfare. Those principles seem to me to be unimpeachable. Furthermore, I endorse Singer J's approach, when faced with an application to terminate parental responsibility, of considering the extent to which the well-established criteria for making parental responsibility orders would be satisfied. I am not persuaded that the statutory changes introduced by the 2002 Act should be interpreted as narrowing the scope of the court's powers under what is now section 4(2A). On the contrary, it is, as I have already observed, notable that Parliament expressly extended the existing court power to terminate parental responsibility to include those fathers who acquire parental responsibility via registration. In doing so, Parliament clearly decided to put such fathers into the same category as other unmarried fathers who have acquired parental responsibility by agreement or court order, rather than into the same category as married fathers. Finally, I am wholly unpersuaded that the decision in Smallwood is no longer good law. On the contrary, it seems to me that its conclusions remain firmly in line with the current legal and social context of unmarried fathers. Accordingly, I reject Miss Townshend's argument that section 4(2A) is incompatible with articles 8 and 14 of the Convention.

23. In my judgment, therefore, Singer J's judgment in Re P outlines the correct approach to be adopted on an application to terminate parental responsibility.

24. Miss Townshend submits that, if the Re P approach is to be followed, it is distinguishable from the facts of this case. I shall return to consider that submission later in this judgment.

25. In considering the application for a specific issues order as proposed by the father, requiring the mother to serve an annual report in respect of D's progress, I apply section 1(1) of the Children Act, together with section 1(3) – the so called 'welfare checklist' – and I also remind myself that the rights of both the father and D under Article 8 – the right to respect for family life – are engaged in this case.

Evidence
Mr Shuttleworth
26. Mr Shuttleworth is a clinical psychologist with considerable experience of conducting assessments of children, adolescents and their families, including cognitive functioning assessments, and parenting and attachment relationship assessments. He has been instructed in family proceedings on many occasions. His assessment of this father was based on his reading of the court papers and medical records and an extensive examination and interview of the father.

27. He found the father to have a full scale IQ of 117, just short of superior intelligence, but considered that his intelligence may in fact be higher but concealed as a result of various problems. He noted that the father had suffered from a number of drug related and alcohol problems over the years, together with a range of psychological disorders, notably Attention Deficit Hyperactivity Disorder, a Major Depression Disorder and a General Anxiety Disorder. The remnants of the first two disorders were still detectable, and the third was, in Mr Shuttleworth's view, still present to a significant extent, demonstrated for example by the father's fear of going out of the house.

28. 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.

29. 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.

30. 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."

He added:

"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."

31. 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.

The Father
32. So far as the allegations of sexual abuse are concerned, the father has changed his position at several points over the years. In the papers, there is a reference to a comment which he is said to have made to a mental health nurse in the presence of his mother in 2008 in which he is said to have admitted at least part of the allegations made by A and C. When interviewed and later charged, however, he denied the allegations and maintained that denial until the third day of the trial when he pleaded guilty shortly before the girls were due to give evidence. In his two statements in these proceedings, he was silent about the truth of the allegations. During his assessment by Mr Shuttleworth, he maintained that he only pleaded guilty to spare the girls the ordeal of giving evidence. As set out above, at the hearing in July 2012, he indicated through counsel that he accepted the convictions were true convictions and that he would not seek to challenge them in these proceedings. At this hearing, however, he has reverted to his previous position that all the allegations are untrue. In cross-examination, he said that he believed the girls had made up the allegations because they were hurt that he had left their mother. He explained his earlier statement about not challenging the convictions by saying that he accepted that he was guilty 'in the eyes of the law'. He proceeded to give an account in oral evidence of the criminal trial and made various assertions about the circumstances in which he was compelled to plead guilty.

33. The father's evidence on the applications before me is set out in his two statements. He states that, prior to the allegations made by A and C, he had been an active part of D's life and D was very attached to him and the rest of his family. He did not accept that D would now not be able to recognise him. He believed that it would be in D's interest to know who his father is and to be given the opportunity to have a relationship with him. The father also believes that it would be detrimental to D's emotional welfare to feel that he gave up on him. He added:

"When he gets older, if he doesn't want to have anything to do with me, I will respect his decision but I feel it is in his interests to be able to make an informed decision when he is older."

34. So far as the question of parental responsibility was concerned, the father stated:

"He is my son and I am not willing to walk away from him and never hear about him again. I wish that I could be as involved in his life now as I used to be, but I realise that this may not be possible. I believe I am realistic in my expectations and I have never attempted to frustrate the decisions that [the mother] makes in relation to his every day life. At present, I know that I cannot have any form of contact with D as this would be a breach of my licence conditions but I would still like to have the opportunity to maintain a relationship of some form with him and I think this is important for him too. In particular, I want to know how he is doing in life, how his education and health and, for example, whether he needs any serious medical treatment. I would only ask for any updates on how D is doing in life and nothing more at this stage. If I was to apply for direct contact in the future, I would happily take advice from for example, the Local Authority or CAFCASS about what is in D's best interests. My parents would also like to be able to maintain a relationship with him…"

35. The father went on to say:

"I fear that another reason [the mother] is attempting to remove my parental responsibility is so that it is easier for her current partner to adopt D."

36. In his second statement, the father expressed the view that the mother is using the application for an order terminating his parental responsibility as a way of punishing him because she thought that he should not have been released from prison.

37. In oral evidence, the father reiterated that he acknowledged that the mother was D's primary carer, together with her new husband, and he accepted that they would be making day to day decisions about D's future, such as concerning schools. He said that he did not want to be involved in such decisions, although he would like to be involved if there was a 'life and death decision'. Provided he got the information he required, so that he would know how D is, he said he would be willing to sign an agreement saying he is not going to go behind the law. He said it was not his intention to make any further application, although he would like to have contact at some point in his life. He accepted, however, that it would be up to D when he was older enough to make that decision on his own.

38. The father was cross-examined about the allegation that he had been sexually abused by his own brother. He repeated his assertion that this had never occurred, notwithstanding a note in his medical records that he had made an allegation to that effect and the evidence of the mother that he had told her that he had been abused.

The Mother
39. In her statement, the mother set out at length the difficulties that existed during her relationship with the father and described in detail the impact of the sexual abuse on A, C and the whole family. She continued:

"We are now settled in an undisclosed address and the children are happy. However, C and A are very scared that the respondent will be allowed to keep his parental rights to D and interfere in our lives again. The girls are still struggling with the issues the respondent has left them with…I will never agree under any circumstances to write to the respondent to tell him how D is getting on. I will never agree to any form of contact between the respondent and D… I do not want the girls scared for the rest of their lives that the respondent may turn up again as he has been doing until now.  I will do everything to protect my children and myself from the respondent. Where D is concerned, he knows the respondent has done bad things to his sisters and he knows that the respondent had hurt them and made them cry. He only recognises my husband…as his father and has stated that he does not want to see the respondent as he has a good dad now."

40. In oral evidence, the mother stated, that if the father's name is mentioned to D, he soils himself. She reiterated that she had no requirement or need to speak to the father and was unwilling to write to him because she would never trust him again after what he had done to her children. She confirmed that she and her husband had spoken about adoption for D, but decided to wait until D asked for it when he is older. She insisted that her application was not motivated by any plan for her husband to adopt D.

41. In the course of her evidence, the mother asserted, apparently for the first time, that D had said that he had witnessed the father sexually assaulting A. She did not accept that it was possible that, in describing what had happened, D had been recounting what the girls had said to him. She said that she had never discussed the details of what had happened with the girls.

CAFCASS Officer
42. In her report, Ms Evans reported that D had told her that he did not wish to see the father or for the father to know anything about him. She noted that these views were likely to have been influenced by living in a family whose members had been individually and collectively exposed to periods of great trauma over a number of years. She added that she understood that D had settled in well at school and there were no concerns about his development. She expressed the view that he now needed to experience a period of stability living within the family free from high levels of emotion. She thought that D needed to develop a positive self image, and 'constant reminders that his father's actions caused significant harm to his older sisters is not one which he needs to have regularly brought to his attention.'

43. Ms Evans accepted that, as he gets older, D will inevitably have questions about his birth father and that these will need to be answered in a balanced way. She thought it was likely that the mother and D's siblings would be more inclined to answer such questions in a balanced way if they felt that the father had accepted that the family now needed to be left alone without any further applications to the court. She thought that there would be a serious risk of ongoing emotional harm to the whole family from the renewal of such regular applications.

44. Ms Evans accepted that, as it was unlikely that there would be any authorised unsupervised contact between the father and D in any circumstances in the foreseeable future, the risk of physical sexual abuse was low. She added:

"However, the risk of emotional harm to D if he were required to receive communication from or see his father until he is ready to do so could in my view be very high. D would experience a high level of emotional turmoil."

45. In oral evidence, Ms Evans accepted that she had not spent much time speaking to the father about this application. She stated that, as the focus had been on D, his wishes and feelings, and the impact of any communications on him, she had not thought it necessary, given the length of time available, to visit the father and speak to him face to face. She accepted on the basis of the conversation that she did have with the father over the telephone that he loved D, missed him and really wanted to know how his son was progressing. He made it clear that he hoped the passage of time would help and would lead to indirect contact and perhaps in due course direct contact.

46. Ms Evans reiterated in oral evidence that it was clear from everything that D said to her that he did not want to see his father at this stage nor have any information about him. She expressed the view that D's position in the family, and his self-esteem, were affected by the fact that he was seen as the father's child. In this respect, it was not so much the current application that concerned her but, rather, the possibility of further applications which she felt would add to the stigma attaching to D. She thought there would be very many difficulties if the father started to exercise his parental responsibility. She thought it likely that the family would wish to move again should that occur. In cross-examination on behalf of the mother, she supported the idea of a section 91(14) order imposing a requirement of the father to obtain the court's leave before making any further applications.

Discussion and Conclusions
47. Where a person has been convicted of criminal offences arising from facts which are subsequently in issue in a children's case, the doctrine of res judicata applies so that the conviction is accepted as evidence of the underlying facts. In practice, save in exceptional circumstances, a court in family proceedings will proceed on the basis that a criminal conviction is correct. In this case, I have listened to the father's evidence carefully but have no doubt as to the genuineness of the convictions. I have found the father's account of the circumstances in which he made what he said was a false confession to be wholly unconvincing. Accordingly, I proceed on the basis that, first, he was properly convicted and, secondly, that in his persistent denial of the allegations he has lied about those matters to professionals and to this court.

48. A further issue arises concerning the allegations he was sexually abused by his own brother. The fact that he has made this allegation appears first in his medical records and subsequently in the mother's own evidence. The father denies ever making any such statement. He says that the doctor must have misunderstood what he was saying and that the mother is lying about this topic. Having heard the evidence of the mother and father, I accept the mother's account. I find that the father has said that he was sexually abused by his brother. Of course, I am in no position to decide whether or not that statement is true. I do find that he is now denying what he has previously said because he is concerned that it will be perceived as evidence that supports the allegations made by A and C.

49. It follows from my findings on those matters that the father has lied about two material points in this case. I remind myself of the principle in R v Lucas [1981] QB 720 that people lie for different reasons (such as shame, embarrassment, panic) and that simply because the father has lied about some matters does not mean that he has lied about everything. In this case, however, I find that the father's lies about sexual matters call into question the whole of his reliability as a witness.

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.

51. I do not accept the father's version that he does not wish to pursue any further applications concerning D at this stage. On the contrary, I find that it is his wish to extend his involvement gradually over a period of time to include ultimately direct contact. 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.

52. In contrast, I find the mother to be a truthful witness who manifestly has the best interests of all her children at heart. Doubtless she has made mistakes in the past, but I see no reason to doubt the validity of the CAFCASS officer's assessment. I accept that the mother feels very bitter towards the father for what he has done, but I do not think it reasonable to criticise her for those feelings, nor do I find that those feelings have inappropriately affected her approach to these applications.

53. I find the CAFCASS officer's assessment both perceptive and persuasive. As she herself acknowledged, it would have been preferable if she had had met the father face to face as opposed to speaking to him over the telephone, but I accept her view that the focus of her enquiries was on D – his current circumstances, and his wishes and feelings – and that this necessitated spending the bulk of her time with him and assessing his feelings.

54. I turn to consider the relevant factors in the section 1(3) welfare checklist. In my view, D's wishes and feelings, his background, his emotional needs, the harm he has suffered and is at risk of suffering in the future, and the capacity of his parents to meet his needs, are all relevant factors in this case. I am duty bound to have regard to those factors when considering the application for the specific issues order and, although they are strictly speaking not applicable as a matter of law when considering the application to terminate parental responsibility, I find it helpful to consider them as part of my overall welfare evaluation.

55. 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.

56. 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.

57. 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.

58. 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.

59. Miss Townshend sought to persuade me that Re P was 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.

60. I therefore make an order under section 4(2A) terminating the father's parental responsibility for D.

61. Having considered section 1 of the Children Act and Article 8 of ECHR, for the reasons set out above, I refuse the father's application for a specific issues order requiring the mother to provide an annual report as to D's progress.

62. There are three supplemental matters that arose in the course of the hearing which I consider in conclusion. To a certain extent, the directions I propose to make in respect of these points mitigate the impact on the father of my decision on the two main applications set out above.

63. First, I accept the proposal put forward by Ms Evans the CAFCASS officer that it would be in D's interest for the father to write a letter to him. In her report, Ms Evans suggested that the father

"may feel that to write a letter to D, which could be disclosed to his son at such a time in his life that he becomes interested and inquisitive about his birth father, as a way of expressing his feelings. This letter could highlight the love he feels for his son and the disappointment he feels about not being a part of his life for so many years. I think it would be important that [the father] would be able to acknowledge that he was responsible for the family's situation. However, in an effort to ensure that D had the best possible chance to live within a stable family environment, he has put his son's wishes and needs before his own. Whilst I appreciate that [the mother] may feel a level of anxiety about the disclosure of such a letter at some point in the future, I think it important for her to both acknowledge and accept that D is likely at some point to seek information regarding his natural father and such a letter may assist him to understand and come to terms with the events his family have experienced."

64. I agree with this proposal and accordingly direct that the father be permitted to write a letter for D to be held by the mother and given to D if and when he makes any enquiry concerning his father when he is older. I request that Ms Evans assist the father in writing this letter and direct that any letter written by the father be approved by Ms Evans before being given to the mother. In the event of any dispute as to its terms, the matter may be referred to me.

65. Secondly, I know that one reason for the father's wish to retain parental responsibility was that he wanted to be a party to any adoption application in respect of D. The effect of the order I have made terminating his parental responsibility is that he will not be an automatic respondent to any adoption application. By virtue of rule 23(3)(a) and rule 26(1)(c) of the Family Procedure (Adoption) Rules 2005, the court at the first directions hearing of any adoption application must consider whether any person who is not an automatic respondent should be made a party to the proceedings. My prima facie view is that it would be appropriate for this father to be joined as a party to any future application to adopt D. Although a final decision on this point will be a matter for the court conducting the first directions hearing in any adoption application, I direct that the prima facie view that I have expressed should be included as a recital to the order I shall make at the conclusion of these proceedings.

66. Finally, it has been suggested on behalf of the mother and by the CAFCASS officer that I should consider making an order under section 91(14) of the Children Act preventing any further applications by the father for any order under section 8 of the Act without leave of the court. Although I am terminating the father's parental responsibility, that does not prevent him from applying for contact because section 10(4) of the Act provides that a parent is entitled to apply for any section 8 order as of right. Under section 91(14), however,

"On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court."

Therefore, on disposing of these applications for orders under section 4(2A) and the specific issues order under section 8, I have the power to order that no application for an order under 8 may be made by the father without the leave of the court.

67. I have, however, decided against making such an order in this case. The authorities, notably the decision of the Court of Appeal in Re P (Section 91(14) Guidelines) (Residents and Religious Heritage) [1999] 2 FLR 573, specify that the power to make such orders is to be used with great care and sparingly. Furthermore, the issue only arose in the course of the hearing and has not been fully argued before me. I do, however, direct that any application by the father for an order under section 8 of the Children Act in respect of D should, in the first instance, be transferred to the High Court and listed before me if available to determine the course of any such application.

68. I will be grateful if counsel for the mother could draw up an order reflecting the terms set out in this judgment and, having secured the agreement of the father's counsel to the draft, submit it to me via my clerk for approval.