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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

Full case CW v SG [2013] EWHC 854 (Fam) via BAILII