News

Application to terminate parental responsibility determined in the absence of the Father

In the case of D v E (Termination of Parental Responsibility) [2021] EWFC 37 (full judgment available here: https://www.bailii.org/ew/cases/EWFC/HCJ/2021/37.html), the court was concerned with three applications by the Mother, namely, an application for a Child Arrangements Order, an application for a Specific Issue Order to change the child’s surname, and an application to terminate the father's parental responsibility for G pursuant to s.4(2A) of the Children Act 1989. In this case, a Children’s Guardian was appointed and an application was also made by the Guardian for a s.91(14) Order.

Background

MacDonald J gave judgment in the Final Hearing which took place on 19th April 2021 and which was not attended by the Father. It was noted by the court that the Father had attended one previous hearing via a prison video link and had been directed to provide a statement to the court. The Father informed the court that he intended to seek legal advice upon his release from prison.

The Father did not comply with the orders, nor engage any further with the proceedings, save for telephoning the Guardian’s solicitor a month before the hearing to provide his contact details. Despite this, he did not attend the Final Hearing, and the Judge was satisfied that the court could determine the applications in his absence.

A previous Child Arrangements Order had been made in 2014 providing for contact arrangements between the Father and the child.

The court noted that the Father had a significant offending history including, in 2016, a conviction for causing or inciting a female child under the age of 16 years to engage in a sexual act and meeting a girl under the age of 16 following grooming. The Father was found to have groomed a 14 year old girl. He was sentenced to 2 years imprisonment and made the subject of a 10 year Sexual Harm Prevention Order. The court noted that the Father’s offending behaviour continued thereafter.

The report of the Guardian in the proceedings recommended in light of the offending history and probation risk assessment, that there should be no contact between the child and the Father, and the previous Order discharged.

Decision

MacDonald J considered s.1(2A) Children Act 1989, and that:

“the following further applicable principles can be drawn from the decisions of the Court of Appeal in Re C (Direct Contact: Suspension) [2011] 2 FLR 912 at [47], Re W (Direct Contact) [2103] 1 FLR 494 and Re J-M (A Child) [2014] EWCA Civ 434 at [25]:

  1. i) The welfare of the child is paramount and the child's best interests must take precedence over any other consideration.
  2. ii) There is a positive obligation on the State and therefore on the judge to take measures to promote contact, grappling with all available alternatives and taking all necessary steps that can reasonably be demanded, before abandoning hope of achieving contact.

iii) However, the positive obligation on the State, and therefore on the court, is not absolute. Whilst authorities must do their utmost to facilitate the co-operation and understanding of all concerned, any obligation to apply coercion in this area must be limited since the interests, as well as the rights and freedoms of all concerned must be taken into account and, more particularly, so must the best interests of the child.

  1. iv) Excessive weight should not be accorded to short term problems and the court should take a medium and long term view.
  2. v) Contact should be terminated only in exceptional circumstances where there are cogent reasons for doing so, as a last resort, when there is no alternative, and only if contact will be detrimental to the child's welfare.
  3. vi) The key question, and the question requiring stricter scrutiny, is whether the court has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case” (paragraph 25).

MacDonald J also considered that the guidance at paragraph 7 of PD12J applied in such cases as these, noting that:

“The Court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm” (paragraph 26).

In respect of the termination of the Father’s parental responsibility, the Judge noted at paragraph 31 the following points from the Court of Appeal in Re D (Withdrawal of Parental Responsibility) [2015] 1 FLR 166:

  1. The child’s welfare is of paramount consideration;
  2. There is no requirement for the court to consider the welfare checklist at s.1(3) Children Act 1989; and,
  3. The ‘no order’ principle applies as the cessation of parental responsibility is an order of the court.

MacDonald was satisfied having considered the applicable case law set out in the judgment (paragraphs 25-38) that;

  1. The Child should live with the Mother and the Order of 2014 be discharged;
  2. A Specific Issue Order should be made changing the child’s surname;
  3. An Order should be made terminating the Father’s parental responsibility; and,
  4. A s.91(14) Order should be made preventing the Father from making further applications.

The Judge considered that within the context of the Father’s offending behaviour and the ongoing risk posed to both the child and the Mother by him, he was “entirely satisfied in these exceptional circumstances that contact between G and her father would be detrimental to her welfare”.

Finally, in respect of the termination of the Father’s parental responsibility, the court said this:

“52. The authorities set out above make clear that the court must ask itself whether, were the father now to be applying for an order conferring parental responsibility for G on him, an application for parental responsibility would be granted. In seeking the answer to this question the court will consider, amongst other factors, 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. I also have regard to the fact that the removal of parental responsibility from a parent is serious step that must be justified on the available evidence and proportionate. However, these factors must all be considered with a view to answering that the fundamental question for the court, namely whether it can be said to be in G's best interests for the father to have parental responsibility for her, taking her welfare as the court's paramount consideration.

  1. In light of the matters set out in this judgment, I am entirely satisfied that were he now to apply for a parental responsibility order, such an order would not be granted to the father. There is no evidence before the court demonstrating an attachment between the father and G. Indeed, G has no memory of her father by reason of the termination of contact consequent upon the father's sexual offending. Likewise, there is no evidence before the court that the father has demonstrated the level of commitment to G that would support the making of a parental responsibility order.”