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.”

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.”