HIGF3268
IN THE HIGH COURT OF
JUSTICE IN NORTHERN IRELAND
FAMILY DIVISION
_______
RE E (T26/99/OCP)
________
1. This is an application by VB for a parental responsibility order in
respect of EF (E) who was born on 18 March 1999. VB and the child’s mother KF
are not married. KF is 20 years of age and has a much troubled background. She
is presently detained in hospital, not for the first time, under the Mental
Health (Northern Ireland) Order 1986. KF and VB met in the spring of 1998 when
both were resident in a night-shelter in Belfast. A relationship developed between
them. E is KF’s second child. L is her first child born on 5 October 1997. L is
the subject of a care order and an application to free her for adoption without
parental agreement is presently before the court. Social Services are of the
view that KF is unable to care for E and L. An Emergency Protection Order was
granted in respect of E shortly after her birth and she is currently
accommodated by the South and East Belfast Health and Social Services Trust
under periodic interim care orders. The original care plan was to assess the
parenting capacity of K F and her relationship with E. It is the Trust’s case
that the mother’s personal difficulties (which appear to be formidable) have
resulted in the care plan for E being changed to adoption and an application to
free her for adoption without parental agreement is also before the court. The
intention is that all the proceedings in respect of both children be heard
together but the first issue for the consideration of the court is whether or
not to grant a care order in respect of the child E.
2. E is beginning to exhibit signs of developmental delay, which may be
related to her mother’s lifestyle and problems. The relationship between KF and
VB was short lived. VB served a sentence of imprisonment. After his release he
made contact with KF and on 7 April 1999 arrived unexpectedly to see E during a
contact visit with her mother. He was due to appear in court in April 1999 but
failed to do so. He was “on the run” from the police for some time. Eventually
he was detained and in July 1999 was sentenced to a further term of
imprisonment from which he was released in March 2000. He has a lengthy
criminal record mainly for burglary and theft. In May 1999 KF informed Social
Services that she did not wish to renew her relationship with VB and made
allegations against him and stated she did not wish him to be included in her
assessment with E. It is important to record that she was much troubled during
the Spring of 1999. In May 1999 she told the Guardian Ad Litem she did not want
VB involved with E due to his criminal record and lifestyle. VB has two other
children from another relationship with whom he has no contact. During the
following 12 months KF had periodic contact with E and she required admission
to hospital on several occasions.
3. On his release from prison in March 2000 VB contacted Social Services. He
is 25 years of age and currently engaged in another relationship. He and his
new partner live in a hostel in Belfast. He seeks a Residence Order in respect
of E and is willing to engage in a parenting assessment at Thorndale Family
Centre. As a putative father he requires leave to apply for a Residence Order
and none of the exceptions referred to in Article 10 of the Children Order
appear to apply. In June 2000 an assessment of VB was carried out by Adoption
Services and he attended all the sessions arranged for him. His attitude was
that E had not been abused in any way and therefore she should not be in care
and instead should live with her natural family. This was his reason for
applying for a Residence Order and it is his intention to prevent E being
adopted. He feels that E being in care reflects upon him in some paedophilic
way. The assessment revealed that he had little family support and demonstrated
that he has a limited understanding of the needs of a child and how caring for
a child would impact on his lifestyle. The conclusion was that he was unable to
show that he could provide for E on a long term basis. His is presently on
police bail. KF is opposed to VB being granted a parental responsibility order
and she has made a statement to that effect.
4. Article 7 of the Children (Northern Ireland) Order 1995 makes provision
for the acquisition of parental responsibility by an unmarried father. He may
acquire it by a formal parental responsibility agreement with the child’s
mother, or, on his application, the court may order that he shall have parental
responsibility for the child. The order provides no criteria which a court
should consider before granting parental responsibility to an unmarried father.
5. Parental responsibility is defined in Article 6.
6(1) In this Order “parental
responsibility” means all the rights, duties, powers, responsibilities and
authority which by law a parent of a child has in relation to the child and his
property.
6. E is the subject of an interim
care order. When a care order or an interim care order is in force, the
authority designated by the order (the Trust) has parental responsibility for
the child. The designated authority or Trust also has the power to determine
the extent to which a parent of a child may meet his parental responsibility
for that child. The fact that E is in care is no bar to her father obtaining
parental responsibility for her – see D v Hereford CC 1991 1 FLR 205.
Furthermore the mother and father of a child can enter into a parental
responsibility agreement in respect of the child and the designated authority
(the Trust) cannot prevent it, despite legitimate concerns or criticisms which
may be raised about the father – see Re X 2000 1 WLR 1031.
7. In care proceedings a putative
father (without parental responsibility) is only entitled to notification of
the proceedings. If he wishes to be joined as a party he is required to apply
to the court. If he has parental responsibility he becomes a party to the
proceedings as of right. In Re B 1999 2 FLR 408 Holman J said that,
broadly speaking, if a putative father (without parental responsibility) wished
to participate as a party in care proceedings he should be permitted to do so,
unless there was some justifiable reason for not joining him as a party.
Ordinarily such a father ought to be heard before major decisions are taken in
relation to his child. Holman J reinforced this by stating that any father who
was showing an interest in his child to the point of seeking to participate in
proceedings was entitled, at least, to be spoken to by the guardian ad litem
about the situation.
8. In proceedings under Article 18 of the Adoption (Northern Ireland) Order
1987 (freeing without parental agreement), the court may direct that a putative
father be joined as a party and he is entitled to notification of the hearing.
In any event he can object to the making of an adoption or freeing order and
can give the Master notice of his intention to object in Form 4A – see Adoption
Rules 1989.
9. Before making an order under Article 18 of the Adoption (N I) Order
(freeing without parental agreement) the court shall satisfy itself that any
person claiming to be the father (a putative father) either has no intention of
applying for a parental responsibility order, or, a residence order, or, if he
did make any such application, it would be likely to be refused – see Article
17 and 18 of the Adoption (NI) Order 1987 as amended by Schedule 9 paragraph
143 to the Children (NI) Order 1995. Under Article 18 of the Adoption (NI)
Order a court may in certain circumstances dispense with the agreement of a
parent or guardian to the making of an adoption order. A parent, in relation to
a child means any parent who has parental responsibility for the child under
the Children (NI) Order 1995 – see Article 2(2) of the Adoption (NI) Order 1987
as amended by Schedule 9 paragraph 138(6) to the Children (NI) Order. Thus it
said that, if a putative father obtains parental responsibility, he can object
to the proposed adoption and a freeing order can only be made if his agreement
to the adoption is dispensed with on one of the grounds set out in Article
16(2). Traditionally a ‘parent’ under the Adoption Order did not include a
putative father and the use of the words ‘father’ and ‘mother’ in the Children
(NI) Order Articles 5-7, would tend to support the traditional view that a
parent is per se a married parent.
10. Under Article 7 of the Children Order the court has a discretion whether
or not to order that a father shall have parental responsibility for his child.
How and in what circumstances should that discretion be exercised? The welfare
of the child must be a relevant consideration. Several cases in England and
Wales suggest that the paramountcy principle in Article 3(1) applies, that is,
that the welfare of the child is the court’s paramount consideration. For my
part, I doubt very much whether a court when considering whether or not to make
a parental responsibility order is determining any question with respect to the
upbringing of a child.
11. If a mother and father agree that the father should have parental
responsibility for the child no arguments to the contrary are effective to
prevent it. If a mother opposes the granting of parental responsibility to a
father, her opposition to it must be a relevant consideration. The opposition
of a mother, depending on the reasons given (if accepted) must be a significant
factor against the granting of parental responsibility, but, without more,
should rarely be determinative of the issue. Cases decided in England and Wales
suggest three factors are relevant, but they are not an exhaustive list – see
for example Re G 1994 1 FLR 504. These three factors are –
(i) the degree of commitment by the father towards the
child;
(ii) the degree of attachment between the father and the
child;
(iii) the reasons why the father is applying.
12. Attachment may not always be relevant. Where an application is made
immediately after birth and before the child has had an opportunity to form an
attachment to his father attachment could not be a relevant issue. There may be
other good reasons why an attachment has not formed. In this case the father
was in prison for long periods of time and was not afforded contact while the
child was in care. Furthermore, a father may have no particular reason for
applying other than the desire to have parental responsibility for his child,
which bestows on him a status akin to parenthood in relation to the child. The
absence of specific reasons for applying therefore, should not be a bar to the
grant of parental responsibility. However where specific reasons are put
forward they require to be considered. In this case the father wishes to obtain
a residence order and at the same time to prevent E’s adoption. This may be
contrary to E’s best interests or it may promote them – but whichever, they are
essentially matters for the court hearing the adoption proceedings. As was
stated in Re G , supra, it must be of some benefit to a child that she
has a father who is sufficiently interested and concerned that he seeks
parental responsibility for his child. However a father whose underlying reason
would be to interfere in the life of the child and create difficulties for a
mother (or the child or both) would find it an uphill struggle to persuade a
court that it would benefit anyone if he were granted parental responsibility.
No such argument is advanced in this case.
13. It seems to me in this case, the most significant factor of the three
which I have mentioned, is the degree of commitment shown by the father VB
towards E. That degree of commitment requires to be considered in the context
of other factors. The assessment of VB concluded that he was unable to
demonstrate that he could provide adequate care for E on a long term basis.
Whether he could care for E or not, does not prevent him having a view on the
proposed adoption which he could put before the court hearing the adoption
proceedings. His lifestyle and criminal convictions are matters which the court
is entitled to consider – see Re P 1997 2 FLR 722. The substance of the
submissions made on behalf of the mother was that VB’s lifestyle and criminal
convictions were such, that he should not be granted parental responsibility of
E. The Trust who, properly in my view, adopted a more neutral role in this
application, pointed to the minimal nature of the degree of commitment and the
lack of attachment. VB’s convictions are mainly for dishonesty and are not as
relevant as would be a very serious criminal offence or an offence of a sexual
nature or an offence against children. If a parental responsibility order is
made the status of the father in the proposed adoption proceedings would be
enhanced. He might be able to require the Trust to satisfy the court that his
agreement to the proposed adoption should be dispensed with. This should not of
itself be a reason for refusing parental responsibility (or for granting it).
14. The Children (NI) Order treats unmarried fathers differently from
unmarried mothers. Unmarried fathers do not have parental responsibility as of
right from the birth of the child. He has to acquire it in one of two ways. If
the mother refuses to enter into a parental responsibility agreement with him,
the requirement that he persuade a court to grant parental responsibility is
not treating him in so different a way from the mother (or a married father),
as to breach his rights under Article 8 of the European Convention on Human
Rights –see B v UK 2000 1 FLR 1.
15. The court is required to balance the various factors which I have
mentioned of which, in this case, the degree of commitment is the most
relevant. This applicant has shown a degree of commitment. If there was
evidence that E’s welfare would be adversely affected by her father gaining
parental responsibility, then that would be a ground upon which to refuse it.
In the absences of clear evidence that E would be adversely affected, the mother’s
objection apart, what grounds are there to refuse it. The mother’s objection is
a significant contra factor. She knows the applicant intimately and, malice
apart, her views carry substantial weight. The applicant wishes to oppose the
adoption. Without parental responsibility he can still ask to be joined as a
party and, even if not so joined, the court must consider his objection to the
freeing for adoption proceedings and he would be entitled to ask the court not
to grant an Article 18 order, but to consider granting him a Residence Order.
It is a fact there is no attachment between the applicant and E and that is
relevant as are the reasons for that. A degree of commitment is present and it
is not an insignificant commitment. However, E is in care and has been for some
time; the Trust plan is for adoption (though that will be tested); the
applicant has two other children with whom he has no contact; he is now in
another relationship with a new partner and neither of them has a home; the
child’s mother objects and her reasons are his lifestyle and criminal
convictions. When I consider his degree of commitment and his reasons for
applying for parental responsibility, together with the various other factors I
have mentioned above, I am not persuaded that this is an appropriate case in
which to grant the applicant parental responsibility and I refuse the order
sought.
IN THE HIGH COURT OF JUSTICE IN NORTHERN
IRELAND
FAMILY DIVISION
_______
RE E (T26/99/OCP)
________
O F
HIGGINS J
________
http://www.bailii.org/nie/cases/NIHC/Fam/2000/42.html