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Terminating a Father’s Parental Responsibility: Preserving the legal status quo

Alex Verdan QC of 4 Paper Buildings and Saoirse Townshend of 36 Bedford Row analyse an important Court of Appeal judgment on termination of PR.

Alex Verdan QC, 4 Paper BuildingsSaoirse Townshend, barrister, 36 Bedford Row

Alex Verdan QC, 4 Paper Buildings, and Saoirse Townshend, barrister, 36 Bedford Row

In the first reported judgment on the issue since 1995, the Court of Appeal has upheld Baker J's decision to terminate the parental responsibility of a father, relying upon the paramountcy of the child's welfare.

Re D (A Child) [2014] EWCA Civ 315 concerned D who was born to the parties in 2004.  In 2009 the appellant father pleaded guilty to sexual offences committed on two of the applicant mother's daughters. He was sentenced to a total of 48 months imprisonment. He was released at the halfway point in June 2011. Immediately upon his release from prison, the mother issued an application under section 4(2A) of the Children Act 1989 for the termination of the father's parental responsibility.  The father applied for a specific issue order requiring the mother to supply annual reports as to the child's progress.

The only other 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.

Baker J found no reason to depart from Re P, despite counsel for father's submissions as to the age of that case and the subsequent changes to the law with the introduction of the Adoption and Children Act 2002 and the Human Rights Act 1998. 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. Applying the principles in Re P, Baker J found that it would be inconceivable that parental responsibility would have been granted if applied for now. Furthermore, he found that 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.

Permission to appeal was granted on three of the five grounds submitted, namely:

I. The learned judge failed adequately to take into account the advent of the Adoption and Children Act 2002 and Human Rights Act 1998 in his application of the Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048 to the facts of this case.

II. The learned judge was plainly wrong to consider the respondent  mother had discharged the burden of proof in light of the lack of cogent evidence as to the risk of the Appellant's sexual recidivism.

III. The learned judge failed to make a proportionate order or take into account important policy considerations, namely the position of unmarried fathers if applications to terminate parental responsibility become more common and, as Singer J feared in Re P, the application becomes: "a weapon in the hands of a dissatisfied mother".

Permission was refused on the question of whether s.4(2A) was incompatible with the rights set out in articles 8 and 14 ECHR relying on the 15 year old European Court of Human Rights ruling in Smallwood v UK (1999) 27 EHRR 155 that the differential treatment of married and unmarried fathers was reasonably and objectively justified.

Giving the leading judgment in the Court of Appeal, Ryder LJ upheld Mr Justice Baker's findings that D had suffered serious emotional harm as a result of his father's crimes and that he was at risk of future harm because of his status within the family.

In relation to the first ground of appeal, Ryder LJ held that whatever the legal changes since Re P, namely the amendments to CA 1989 by section 111 Adoption and Children Act 2002, and the introduction of the Human Rights Act 1998, this did not affect Mr Justice Baker's correct articulation of the test to be applied when considering an application to terminate parental responsibility [paras. 18 – 21 of his judgment]. The concept of paramountcy of welfare remains the governing principle to be applied [18]. Ryder LJ was satisfied that the High Court was right to apply the welfare checklist as an analytical tool to find that D's welfare would be "imperilled" if father were to have any involvement in his life [21].

The second ground relied upon by the appellant related to the purported paucity of evidence of sexual risk. Ryder LJ stated that the court would be very hesitant to interfere with the High Court's assessment of the evidence having heard that evidence live. Ryder LJ related the findings made in the lower court, all of which based this court's assessment of the appellant's credibility, insisting that Baker J was entitled to conclude from this that there was a danger of further damage to the family if the father had any further involvement. Again, the ratio of Re P was supported; this father could not prove that he was capable of exercising his parental responsibility "with responsibility" [26]. It is important to note that the father did not seek direct contact but did apply for a specific issues order for yearly updates; an application which was refused by the High Court.

Finally, the Court of Appeal considered the proportionality of the decision to terminate parental responsibility under Article 8 ECHR in light of the fact that other less draconian orders were available. The father argued that Baker J had failed to properly consider the imposition of an order under section 91(14) which would have limited his access to the courts in the event of further applications made, but would not have gone so far as to terminate the link between father and child. Ryder LJ proposed that there is no hierarchy of orders such that one is less significant an interference than the other [30]. He found that Baker J was correct to terminate parental responsibility because the appellant was unlikely to be able to exercise parental responsibility consistently with the welfare of his son. However, this in part was based on the conclusion that any future involvement in D's life or threat of future involvement would have a detrimental impact on D's welfare. In this case it is worth noting that the extent of father's proposed involvement was only yearly updates. Therefore this may not sit altogether comfortably with Lord Justice Ryder's observation: "It is perhaps important to note that although the judge concluded that it was unlikely that this father would exercise his parental responsibility consistently with the welfare of his son, he did not conclude that his access to the court should be limited.  That was no doubt because the father has not used the processes of the court to adversely impact on his son's welfare.  His use of the court has to date been entirely appropriate [30]." Nevertheless, Ryder LJ did concede that both orders can be rightly regarded as draconian in effect [30]. It was then a matter for the judge to find the appropriate and proportionate order.

Ryder LJ ends his judgment with a cursory note of warning; that the case should not be construed as allowing it to become easier to remove an unmarried father's parental responsibility. In light of courts' greater acceptance of shared parenting arrangements and the increasing number of children, 45.7%, born in to unmarried households, it is hoped that the courts will take heed and be particularly wary when determining applications of this sort.


For another article on termination of parental responsibility, written by Esther Lieu of Queen Square Chambers in anticipation of the Court of Appeal's judgment, please click here.