D (A Child): Father's appeal against order terminating PR fails

Lord Justice Ryder
The Court of Appeal has dismissed the father's appeal against the termination of his parental responsibility, in D (A Child) [2014] EWCA Civ 315.

The original order had been made by Mr Justice Baker on the 12th of April last year. Very briefly, the parties were not married and had one child, a boy ('D'), born in 2004. The father's name appeared on D's birth certificate, and so he acquired parental responsibility. The parents separated in 2005. Following the separation the mother's two elder daughters, then aged about 10 and 9, told her that they had been sexually abused by the father. The father was subsequently charged with a series of sexual offences involving both girls. The father initially denied the charges, but changed his plea to guilty at the trial. He received a four year prison sentence.

In July 2010, the father wrote a letter to the mother's former solicitors from prison, referring to his parental rights in respect of D, and stating that he wished to have contact with him. The mother then moved to a location unknown to the father.

The father was released on licence in June 2011. The terms of his licence, which expired on 24th June 2013, included a restriction on any contact with D.

On 16th July 2011, the mother filed an application for an order terminating the father's parental responsibility, which was granted by Mr Justice Baker last April. The father sought permission to appeal.

The grounds of appeal upon which permission was granted were that:
(i) the judge failed to distinguish the 1995 case Re P to have regard to the principles set out in the Human Rights Act 1998, the Adoption and Children Act 2002 and the changing social norms over the 18 years since Re P;
(ii) the judge failed to consider whether the mother had discharged the burden of proof so as to establish her allegation that the father was "a sexual recidivist"; and

(iii) the judge failed to make a proportionate order or take into account the asserted policy consideration that applications of this kind should not be allowed to become "a weapon in the hands of a dissatisfied mother".
Lord Justice Ryder gave the leading judgment in the Court of Appeal. He dealt with the three grounds of appeal in turn and found against each:

As to ground (i), nothing had changed to alter the court's powers or the overarching principle to be applied, i.e. the paramountcy principle. Baker J had applied that principle:
"Baker J articulated the correct test at [22] and [58] and considered the key issues on the facts of this application at [59], he utilised the welfare checklist as an analytical tool at [54] to [57] and reminded himself of the interference with article 8 rights that needed to be justified. He concluded that despite the need of every child to have an understanding of his biological origins and whenever possible a relationship with each parent, D's welfare would be 'imperilled' were his father to have any involvement in his life. That conclusion is unassailable both on the facts and as a value judgment within a careful welfare analysis."
As to ground (ii), the process of fact finding in family proceedings is quasi-inquisitorial. It was inappropriate to talk of the burden of proving a fact. The judge had made various findings against the father and on the basis of the facts that he found he was entitled to conclude that it was highly unlikely that the father appreciated the damage he had caused to every member of the family, or the danger of further damage should he have any further involvement with the family. Lord Justice Ryder said at paragraph 26:
"It is superficial to say that in this case D's father has not inflicted harm directly on his child and that therein lies a distinction with Re P which ought to have led to a different conclusion. D's father inflicted devastating emotional harm on the whole family including D which he continues to deny. It is difficult to see how in that circumstance and in the absence of any other positive factors, the father can be said to be capable of exercising 'with responsibility' his parental rights, duties, powers, responsibilities and authority."
As to ground (iii), it was suggested on behalf of the father that a s.91(14) order would have been more appropriate. However, Baker J had specifically considered and discounted such an order. As to the other point Lord Justice Ryder had this to say:
"[Counsel for the father] submits that by acceding to the application on the facts of this case, the court is failing to guard against the application becoming "a weapon in the hands of a dissatisfied mother". In the 18 years since Re P was decided there have been no reported decisions of that kind and the changed social conditions over those years has not led to any reported increase or change in applications of this kind. There is nothing before this court which would suggest that there is a need to enhance the court's vigilance in that regard. Furthermore, even if this vigilance is sensible, which it is, there is no remedy that is suggested other than that the court should be careful. Baker J was very careful and I can see nothing that can be derived from this submission other than support for the general proposition that the court should take the most proportionate route to a welfare resolution that is consistent with the best interests of the child concerned. The application in this case was manifestly not being used as a weapon in the hands of a dissatisfied mother. The proceedings simply could not be regarded in that light."
Accordingly, the father's appeal was dismissed, although Lord Justice Ryder did point out that:
"Nothing I have said in this judgment should be construed to suggest that it has become or should become easier to remove an unmarried father's parental responsibility. I would strongly resist any move in that direction. It is vitally important to encourage the exercise of parental responsibility by fathers. Children have a right to that benefit."
Lady Justice Gloster and Lady Justice Arden gave concurring judgments.