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Parental responsibility: is a rapist father still a father?

Feb 26, 2019, 07:29 AM
Parental responsibility: is a rapist father still a father?
Parental responsibility: is a rapist father still a father?
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Date : Feb 26, 2019, 08:24 AM
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Partner Oliver Gravell and trainee solicitor Georgia Wright, of Birketts LLP, examine MPs support for a young woman who was seeking to deny parental rights to a man who raped her, as they are demanding a change to the Children Act 1989. Gravell and Wright look at the legal issues surrounding parental responsibility.

MPs have voiced support for a young woman who was seeking to deny parental rights to a man who raped her, and are demanding a change to the Children Act 1989. So far 410,000 have signed the petition calling for an amendment to the Children Act.

Miss Woodhouse was a victim of the Rotherham sex-grooming scandal and was outraged at the rules permitting a local authority seeking a care order to serve notice of proceedings on any parent, even if they have no responsibility for the child. She argued that the rules gave rapists a chance to "re-traumatise their victims" in court.

It is reported that the child’s father was listed as a respondent in a family court case involving the child. He was contacted in prison by the local authority, where he is serving a 35 year sentence for multiple sex offences, who promised to keep him informed of all future proceedings involving the child.

The current law

Under English law, a father with parental responsibility (usually known as PR, being the bundle of rights that a parent has in relation to a child) must be notified of any care proceedings involving the child and is automatically a party to any family court case concerning his child (Rule 12.3 Family Procedural Rules 2010). Where a father does not have PR, he is entitled to be notified of care proceedings, and the court will send notice to every person believed to be a parent without PR (paragraph 3.1 of Practice Direction 12C of the Family Procedural Rules 2010).

PR is either established automatically where the parents are married, where a father is named on a birth certificate, or if granted by a court or by a formal agreement between the parents. All mothers automatically have PR. In Miss Woodhouse’s case, she was neither married to the father nor was he named on the birth certificate. He had also never applied for PR. He has had no previous involvement with the child and the child had made it clear she did not want any relationship with her father.

As a result, a convicted rapist does have the right to be notified of care proceedings involving his child by default. This legal status gives the parent the right to be given information and the potential to be involved in important decisions affecting their child's upbringing. Effectively, it is argued, rapists are being invited by local councils to play a role in their children's lives.

Of course being notified of the care proceedings does not mean that the father has an automatic right to have contact with the child, and any contact would depend on the circumstances of each case. The child's welfare would be the paramount consideration.

Additionally, the local authority has the option to make an application to bypass this requirement to notify a parent of care proceedings. If the father of the child is already actively involved in the child’s life it is unlikely that the application would be approved. Even if the father of the child is not actively involved in the child’s life, a good reason to keep the care proceedings from him would need to be demonstrated; usually a risk to the mother or child that cannot be managed.

In the case of CD (Notice of care proceedings to father without parental responsibility) [2017] it was said that the starting point in making the decision must be twofold:

  1. that it will normally be in the interests of the child that her birth father should receive notice of the care proceedings, thereby enabling him to apply for party status so that he can participate in the proceedings, and
  2. that the child and her mother should not be put at risk of harm as a result of seeking to engage the father in the proceedings. In a mark of how unusual and difficult such an application was, the Attorney General was invited to intervene in the proceedings – this is extremely unusual.

Therefore, whilst it is likely in cases such as Miss Woodhouse’s that an application to bypass would be successful, the reality remains that there is no absolute guarantee and nevertheless, this does not avoid the trauma and unnecessary stress for the victim. (It should be noted that Rotherham Council claim they were unaware of the possibility of making this application). Indeed where a father does have parental responsibility, he will automatically be a party to the proceedings and it will require a ‘high degree of exceptionality’ to exclude him from proceedings (and by extension to not notify him).

The Labour MP Louise Haigh, who is working with Miss Woodhouse, said: “Convicted rapists should have no parental rights. We’re campaigning for a change to the Children Act to stop the courts being used to re-traumatise victims and remove the rights of men who’ve fathered children through rape.” 

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