Family Law Week Email SubscriptionAlpha BiolabsCoram Chambers1 Garden Court

Court of Appeal upholds termination of father’s parental responsibility

Court reiterates that paramountcy test is overarching

In Re D (A Child) [2014] EWCA Civ 315 the Court of Appeal has upheld the decision of Baker J to terminate the parental responsibility of a father who had been imprisoned for sexual offences against children from a previous relationship.

D was born in 2004; the parties never married but the father obtained parental responsibility for him by virtue of being named on D's birth certificate (s.4(1) CA 1989). In 2009 the father pleaded guilty to sexual offences against the mother's two daughters (from a previous relationship) and was sentenced to 48 months imprisonment. On his release in June 2011 the mother issued an application under s.4(2A) that the father's parental responsibility in respect of D be terminated; the father cross-applied for a specific issue order that the mother provide him with annual reports about D's progress. He did not apply for contact.

Adopting the approach of Singer J in Re P (Terminating Parental Responsibility) [1995] 3 FCR 753, Baker J considered whether in the same circumstances as the present case an application by the father for parental responsibility would be granted; applying the criteria set out by Ward LJ in Re S (Parental Responsibility) [1995] 2 FLR 648 he found such a supposition to be 'inconceivable'. Other contributing factors to his decision were, inter alia,  the fact that there was no attachment between the father and D, the father's very late guilty plea to the sexual offences, and the fact that, in the judge's view, the father would not be able to exercise his parental 'responsibilities' in a manner beneficial to D.

The father appealed.

Arden, Gloster and Ryder LJJ (judgment delivered by Ryder LJ) dismissed the appeal.

The Court reiterated that as parental responsibility is a status relating to the welfare of the child the paramountcy test is overarching; it is the welfare of the child that creates a 'presumption' as to the existence or continuance of parental responsibility, not the fact of the father's parenthood.

The Court noted that the changes to s.4 CA 1989 brought about by s.111 ACA 2002 did not "enlarge, narrow or re-cast the court's powers or the overarching principle to be applied" [18]. They found that Baker J articulated the correct test under s.1(1), considered the key factual issues, utilized the welfare checklist as an analytical tool and reminded himself that interference with article 8 rights need to be justified [21]: the judge's conclusion that D's welfare would be 'imperiled' were his father to have any involvement in his life was therefore held to be unassailable.

The father's second ground of appeal related to the judge's findings of fact; having regard to the advantage a trial judge has over the appellate court in assessing the evidence, the Court expressed its hesitation in interfering with that process [22]. The Court determined that Baker J was entitled to conclude that the father was unlikely to appreciate the damage caused by his actions or the damage he could cause should he have any further involvement with the family. The Court also rejected the argument that the mother had to discharge a 'burden of proof' noting that family proceedings are quasi-inquisitorial.

Alex Verdan QC of 4 Paper Buildings and Saoirse Townshend of 36 Bedford Row (instructed by Galbraith Branley) represented the appellant. Alistair MacDonald QC of St Philips Chambers and Andrew Lorie of 3PB (instructed by Dickinson Manser LLP) represented the respondent.

The judgment and summary by Esther Lieu of Queen Square Chambers, from which this news item is derived, can be found here. An article by Esther Lieu – The Termination of Parental Responsibility: Awaiting the Court of Appeal's Judgment in the Appeal of CW v SG – can be found here.