RE M (PARENTAL RESPONSIBILITIES ORDER)

Becoming a father and appreciating the weight of parental responsibility are two distinctly separate issues, and the courts are slow to grant such rights to unmarried fathers when the nature of their relationship to the child(ren) proves routinely disruptive and damaging to the sanctity of ‘family’, whether intact or fractured.

On this occasion, the appellant was father to a son aged eleven, who at the time of his birth, was declared fatherless on grounds that while the appellant’s name was visible on the birth certificate, it was at a time before legislative changes granted parental rights to unmarried or estranged fathers under section 111 of the Adoption and Children Act 2002.

When the parents separated after seven years together, the appellant applied for a contact order, despite protestations that he had exhausted himself as a parent, and that he no longer wished to stay in his son’s life.

This was followed by his unexpected removal of their son from school, before disappearing for a number of days without any communication to both the mother, or the local police.

After returning with his son, the appellant further refused welfare visits, before releasing him back into his school unharmed.

In response, the respondent mother applied for a residence order, while declaring that the appellant should be subjected to no contact, and a prohibited steps order.

During the hearing, the father agreed to supervised contact, and things remained that way for the next two years, until the appellant applied for both parental responsibility and for direct contact with their son.

During this hearing, the appellant requested to remove his application, before departing the court unexpectedly; at which point, the judge awarded residency to the respondent, before issuing a two-year disposal order under section 91(14) of the Children Act 1989, thereby preventing any further orders of that kind from the appellant.

Despite total opposition from the respondent and their son, the appellant argued before the Court of Appeal that on a number of points, the judge had either overlooked or under appreciated, the status rights afforded him; and that his commitment to his relationship with his son was beyond reproach.

Contrastingly, the attending doctor’s report told quite a different story, when outlining that:

“It appears that when faced with rejection [father] will engage in varying behaviours, including cajoling, begging and threatening in order to manipulate others into meeting his needs and that when others do not meet his expectations he may become increasingly controlling, including expressing anger to manipulate them, transgressing boundaries in an effort to resume control of situations … the prognosis for significant behaviour change is poor due to excessive denial … it is possible that [father] will attempt to use his relationship with his son in an attempt to manipulate or denigrate [mother].”

This evidence ran counter to the nature of the appellants’ appeal, and while fully appreciative of the arguments adopted, careful examination of the previous judgment revealed that far from neglecting to consider the needs of the appellant, the court had been explicit in its reasoning.

And, that when issuing the section 91(14) order, welfare, existing authority and proportion of risk had all been calculated, so as to justify both the dismissal of the claim for parental responsibility and the appeal itself, while the court reminded the parties that:

“[W]here a father has shown commitment to a child, has a good relationship with the child and has sound and genuine reasons for wanting parental responsibility, an order granting him that status will not usually be refused simply because, through hostility to the child’s mother or an excess of zeal, he may seek to exercise parental responsibility inappropriately.”

MABON v MABON

The right for a minor to enjoy autonomous representation within family law proceedings, is enshrined under both the Care of Children Act 2004 and the Family Proceedings Rules 1991.

English common law functions within a patriarchal system; however, it is sometimes counter-productive to fetter the needs of the child, when their aptitude and resilience to parental influence permits them to speak for themselves.

In this matter, a couple had enjoyed a marriage bearing six children, until such time as they parted company. This produced an almost equal split between the children, with the father remaining with the three eldest boys aged thirteen, fifteen and seventeen.

After her departure, the mother applied for residence orders to enjoy spending time with her sons, whereupon the CAFCASS officer became the legal guardian of all six children prior to proceedings.

Following a lengthy and somewhat protracted hearing, the three boys approached their acting solicitor to remove the presence of the CAFCASS officer in lieu of direct representation.

This was requested under Rule 9.2A(4) of the Family Proceedings Rules 1991, which explains that:

“Where a minor has a next friend or guardian ad litem in proceedings and the minor wishes to prosecute or defend the remaining stages of the proceedings without a next friend or guardian ad litem, the minor may apply to the court for leave for that purpose and for the removal of the next friend or guardian ad litem …”

Family Proceedings Rules 1991

At which point, the court must evaluate the merits of such a request under Rule 9.2A(6), which reads:

“Where the court is considering whether to

(a) …

(b) grant leave under paragraph (4) and remove a next friend or guardian ad litem, it shall grant the leave sought and as the case may be remove the next friend or guardian ad litem if it considers that the minor concerned has sufficient understanding to participate as a party in the proceedings concerned or proposed without a next friend or guardian ad litem.”

Family Proceedings Rules 1991

On this occasion, the trial judge found himself unable to reconcile the boys’ request with his own consideration of both time constraints and the value of their own personal insight, before passing judgment.

In response, the boys’ countered by appeal to the Supreme Court that failure to allow for the removal of the appointed guardian, stood in direct conflict with article 12 of the United Nations Convention on the Rights of the Child 1989, and article 8 of the European Convention on Human Rights (ECHR) (Right to respect for private and family life).

Having also received a doctors report, the Court were reassured to learn that:

“What is clear is that all three boys are very able. They are quick in terms of being articulate and perceptive. Andrew is perhaps the more articulate of the three boys; being the middle of the three he tends to be the spokesman, whilst Craig is the more quiet and thoughtful of the three.”

Which on the facts, allowed for greater appreciation of Rule 9.2A(6) and confirmation that to prevent the independent and separate representation of the three boys, was counter to the purposes of the Family Proceedings Act 1991 and both Conventions.

This was a view supported by section 6(2)(a)(b) of the Care of Children Act 2004, which reads:

“6 Child’s views

(2) In proceedings to which subsection (1) applies,

(a) A child must be given reasonable opportunities to express views on matters affecting the child; and 

(b) Any views the child expresses (either directly or through a representative) must be taken into account.”

Hence, with full consideration of not only the statutory powers afforded children, but the advances in family law since 1991, the Court recognised the need to embrace the advocacy of children’s views within family cases.

And so, while section 42 of the Children Act 1989 affords guardians powers to investigate the views of minors within trial environments, it was held unnatural to override the tenacity and endurability of children for the sake of adult overprotection.

Whereupon, the appeal was upheld and the order of Rule 9.2A(4) of the Family Proceedings Act 1991 allowed, while the court reminded the parties that:

“[T]he right to freedom of expression and participation outweighs the paternalistic judgment of welfare.”

RE S (CARE ORDER: IMPLEMENTATION OF CARE PLAN)

Re S (Care Order: Implementation of Care Plan)

In this conjoined appeal case, there were two matters in need of address, and both involved a local authority and the issuing of final care orders for families in need of reunion.

The first, was re S (Minors) (Care Order: Implementation of Care Plan) and the second, re W (Minors) (Care Order: Adequacy of Care Plan) as shown below:

Re S (Minors) (Care Order: Implementation of Care Plan) 

As the mother of three children aged fourteen, eleven and ten, to two fathers, the oldest of them was raised by the father of his younger siblings, and over a course of almost a decade became subject to both emotional, physical and sexual abuse on an almost routine basis.

Having run away from his home, the victim explained his suffering and was subsequently placed into foster care; whereupon, the stepfather denied all allegations with the full support of the victim’s mother; yet, when challenged, he displayed threatening behaviour before the local authority and was later sentenced to community service.

In light of those events, the two younger children were also placed into foster care, while the parents separated in order to obtain their return to the family home, despite recommendations by professional experts that the father remained an unacceptable risk to the children.

Following a hearing in the local court, the father was found guilty of sexually abusing the eldest child, while both parents were held to have been physically and emotionally abusive towards all three children, with particular regard to the eldest sibling, while the local authority responded by seeking care orders for the three children.

While it was agreed that the eldest was to remain in foster care, the younger children were designated a care plan involving their return to the mother; however, there was a degree of anxiety surrounding the absolute power of local authority decisions in such circumstances.

And so, mention was made of the potential human rights violation should the mother and children not retain a tenable relationship, along with the proposal of interim care orders to provide assurances to the family.

At the hearing the judge granted final care orders for all three children; and yet, over time the promises of the social workers and appointed guardians dissolved into disappointment, after none of the proposed programmes materialised.

Having been presented to the Court of Appeal, it was held that the local authority had abjectly failed on its promise to provide care, but was acquitted under arguments of monetary cuts and a reduction in public resources; whereupon, the mother contended that the court had erred in not considering her suggestions for interim care orders, and the children’s guardian sought relief under sections 6 (Acts of public authorities) and 7 (Proceedings) of the Human Rights Act 1998 (HRA); however, both arguments were dismissed.

Re W (Minors) (Care Order: Adequacy of Care Plan)

In this instance, the welfare of two boys aged ten and twelve years of age rested upon the intervention of the mother’s grandparents, who themselves resided in the United States of America.

Having met overseas, the parents returned to live in the United Kingdom, in order to marry before starting a family; however, during the course of their childhood, the boys had been subjected to numerous separations and reconciliations, and also spent considerable time living apart from one another while remaining in contact with both parents.

This chaotic existence had later given rise to questions concerning the ability of the parents to meet the needs of the children, in large part due to the deteriorating mental health of the mother, who had made insubstantial allegations against the father prior to the local authority applying for an emergency protection and interim care order.

Having established a care plan, it was agreed by the County Court that the two boys would be placed into foster care before the arrival of the American grandparents, who planned to live with them in the United Kingdom, despite reservations by the judge that their migration would materialise, and that the proposed therapy and marital management programmes would succeed, with particular emphasis on the mother’s diagnosed imbalances.

Upon challenge by the local authority in the Court of Appeal, it was held that the care plan had been prematurely executed; and so, the final care order was replaced with an interim order, while referring the case back to the awarding judge, an alteration which instigated reluctance by the grandparents to assume care of the boys unless under definite conditions.

This prompted the reissue of a final care order with the full support of the parents, albeit in argument that they would apply to have the order discharged if their reunion was not provided in due course.

For clarity, under section 33 of the Children Act 1989 an acting local authority is granted parental responsibility (PR) for the duration of the assigned care order and can therefore determine the rights of the parents in relation to their children; while under section 100, the courts are expressly denied interference with those powers; however, section 6 of the HRA 1998 prevents a public authority from acting in a way that proves incompatible with a Convention right, while section 7 allows those victim of such actions, to bring proceedings against them.

Section 8 (Judicial remedies) further enables the court to decide how best to provide legal remedy, or issue powers appropriate to its jurisdiction, which translates that where a local authority infringes art.8 of the HRA 1998 (Right to respect for private and family life), the deciding court can lawfully grant relief to those affected. 

More interestingly, under the Review of Children’s Cases Regulations 1991, a local authority is required to consider the possible discharge of a care order on a six-monthly basis (subject to the views and consideration of the child(ren) and parents), while section 3(1) of the Children Act 1989 provides that parents retain the same rights, duties, powers and parental responsibilities as before an order was made, therefore their civil rights are affected, but not wholly compromised.

Finally, section 38 of the Children Act 1989 provides the court with powers to issue interim care orders in order to provide safety and security for vulnerable children for a determined period.

With both cases put before the House of Lords, it became evident that in the first case, the Court of Appeal had introduced a ‘starring’ mechanism as a means of preventing failure to implement care plans, whereby each plan was marked with progressive indicators that when not reached in the agreed period, triggered automatic rights to reactivate the consultation process in order to avoid missed or overlooked public body requirements.

In the second case, no such mechanism had been used, which had prompted intervention by the Secretary of State for Health, who received claims that sections 31, 33(3),38 and 100 of the Children Act 1989 were incompatible with existing Convention rights, while the local authority had appealed against the alteration of the care order and the broadening of judicial powers to award interim orders.

Examination of the Children Act 1989 and suggested incompatibility with Convention rights after the introduction of ‘starring’, drew immediate reference to the overlapping rights of courts when care orders are in effect, and while the House appreciated that the inventive use of rudimentary measures was a decision privy to Parliament, and that while there was stark evidence to support legislative reform, it was simply ultra vires for the Appeal Court to act without restraint. 

An so, with regard to the overextension of the interim care orders when faced with an ill-prepared care plan, the House upheld the appeals bought by both a ministerial and public body, while taking time to remind the parties that:

“Where a care order is made the responsibility for the child’s care is with the authority rather than the court. The court retains no supervisory role, monitoring the authority’s discharge of its responsibilities. That was the intention of Parliament.”

AI v MT (ALTERNATIVE DISPUTE RESOLUTION)

With the introduction of Alternative Dispute Resolution (ADR) in 2010, the essence of divorce and family proceedings became less governed by litigation and more attuned to considered discourse between parties on terms embracing the welfare of children and respect for individual rights.

After marrying relatively young, and moving quickly into starting a family, two devout members of the Jewish faith found themselves in stark opposition to how best they could live their lives and in turn, seek to end the marriage before occupying different countries.

When the matter of how contact could be set between the father and the two small children, it soon became a matter of contention that ultimately drew guidance from the Jewish community, but overall authority from the English courts.

When adopting ADR strategies, the emphasis is typically placed upon expedience and reduced costs; however, due to such vast geographical differences, and intrinsic religious constraints, the process of divorce ran over a period of years versus months, and was certainly not without its frustrations.

What eventually emerged however, was that through a combination of delicate communication, respect for doctrinal traditions, cohesive written agreements and the balancing of the needs of the children, it was possible to overcome the potential pitfalls of cross-jurisdictional conflict, and move matters to a much more mature and objective conclusion.

This became an outcome that at times, seemed unlikely given the inclination by the parties involved to build walls between them, that in turn, served to harm the children and drain financial resources further.

Thankfully, it all came down to a successful collaboration of the Jewish authorities, domestic courts and continued willingness of the parents to collectively work toward a resolution beyond the lifetime of marriage, while in its conclusion, the court reminded the parties that:

“[S]ave where statute provides otherwise, when considering issues concerning the upbringing of children, it is the child’s welfare that is the paramount consideration.”