Terminating a father’s responsibility for the child

Fran Massarella reports on a recent case concerning an application to terminate a father’s responsibility for the child pursuant to s.4(2A) of the Children Act 1989.

The case of D v E (Termination of Parental Responsibility) [2021] EWFC 37 (MacDonald J) concerned G, aged 8. The mother made three applications to the court within this final hearing:

1. An application for a child arrangements order pursuant to s.8 Children Act 1989;
2. An application for a specific issue order to change G’s surname pursuant to s.8. Children Act 1989; and
3. An application by the mother to terminate the father’s parental responsibility for G pursuant to s.4(2A) Children Act 1989.

The Children’s Guardian made a further application under s.91(14) Children Act 1989 to prevent the father making any further applications to the court without permission.

The father did not attend the hearing and was not represented. He had persistently failed to engage with the proceedings. He failed to comply with the Court’s directions or make any contact with the Court prior to the final hearing.

The parents began their relationship in 2009 and separated in March 2014. G was born in 2012 and was 16 months old at the time of the parent’s separation. The father was named on her birth certificate. A final order was made in December 2014 to allow unsupervised contact between the father and G twice a week, following a report completed by Cafcass.

The father had a significant offending history, including harassment causing distress to the mother in 2014 and wounding with intent to do GBH using a vehicle in October 2015. He was also investigated for sexual offences against a child during 2015, which resulted in the mother stopping his contact with G from July 2015 onwards, which was supported by police and Children’s Services. The father was convicted of child sex offences in November 2016, resulting in a 2-year sentence of imprisonment and a 10-year Sexual Harm Prevention Order.

Upon his release from prison, he breached his licence conditions and was sent back to prison. The mother issued proceedings in September 2019 to remove the father’s parental responsibility for G. The Probation Service conducted a report and considered that the father presented a risk to intimate partners and children.

The Children’s Guardian recommended that there should be no contact between G and her father, that it was in G’s best interests for her surname to be changed and did not oppose the mother’s application to terminate the parental responsibility of the father. The CG also recommended that any applications the father wishes to make in future should require permission.

The mother contended that all of the applications she made would be in G’s best interests. Whilst the father was not before the Court, he had previously expressed his opposition to these applications.

The Court outlined the law to be applied to each of the four applications. In relation to the child arrangements order, the cases of Re C (Direct Contact: Suspension) [2011] 2 FLR 912, Re W (Direct Contact) [2013] 1 FLR 493 and Re J-M (A Child) [2014] EWCA Civ 434 held that the following criteria should be applied:

i. The welfare of the child is paramount;

ii. There is a positive obligation on the State to take measures to promote contact before abandoning hope;

iii. However, the positive obligation is not absolute and the best interests of the child should also be considered;

iv. The Court should take a medium and long term view;

v. Contact should only be terminated in exceptional circumstances; and

vi. The key question is whether the Court has taken all necessary steps to facilitate contact as can reasonably be demanded.

It was also highlighted that the Court should consider any risk of harm, including domestic abuse, which the child might be subjected to.

The relevant legal test to be applied for an application to change a child’s name was set out at [30] and came from the case of Re W, Re A, Re B (Change of Name) [1999] 2 FLR 930. There were a number of key factors to consider, including the child’s welfare, the reasons for the initial name registration, factors which may arise in future, any change of circumstances of the child since the original registration, whether or not the parents were married, and the degree of commitment of the father to the child.

In respect of termination of parental responsibility, the case of Re D (Withdrawal of Parental Responsibility) [2015] 1 FLR 166 was cited at [31], where it was held that the child’s welfare ought to be the paramount consideration and whether making such an order would be better for the child than making no order at all.

Finally, the relevant legal test for an application under s.91(14) Children Act 1989 was set out at [37]. The Court explained that there are multiple factors to consider for such an application, including the child’s welfare, the power should be used sparingly as a last resort and the degree of restriction should be proportionate to the harm it is intended to avoid.

At [38] Mr Justice MacDonald concluded that all four orders applied for should be made. At [40], he explained that ‘a particularly significant factor in this case…[was that] G has [had] no relationship with, or indeed any recollection of the father.’ Furthermore, in regard to the order under s.91(14), the Court held that in order to ensure that G could properly absorb the consequences of the making of the other orders, she needed to know that there was a guarantee that the father would not maintain any further consistent involvement in her life. Additionally, at [43], it was held that the father continued to ‘present an appreciable risk of serious harm to both G and to the mother.’ Consequentially, it was concluded that it was in G’s best interests to have no contact with her father.

All four applications were accordingly granted.

Francesca Massarella is due to begin pupillage at Spire Barristers in September 2021.