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31 JAN 2019

Analysis - Removal of parental responsibility: C v D and another [2018] EWHC 3312 (Fam)

Analysis - Removal of parental responsibility: C v D and another [2018] EWHC 3312 (Fam)

Anthony Gold's Victoria Brown looks at cases in which the court will decide to remove parental responsibility from a father as they are exceptional.

It is almost always in a child’s best interest for their father to retain parental responsibility, particularly as the court has the power to make a range of other orders to limit the exercise parental responsibility where this is in the child’s best interests.

The very few reported cases that have involved termination of parental responsibility have involved the perpetration of serious physical abuse against the child or other members of their family. The circumstances within the recent case of C v D and another were very different, however were found to warrant the termination of the father’s parental responsibility.

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This case concerned an application by the child’s mother, which was supported by the child’s guardian, for orders removing the father’s parental responsibility, a change in surname and for an extension of a non-molestation order. The child was around six years old at the time, and his father had parental responsibility by virtue of being registered on the birth certificate. The parents’ relationship had lasted for around two years, ending shortly after the child’s birth, and the mother and child went to live with her parents. Children’s Services had been involved from an early stage as a result of the father’s intimidating and controlling behaviour, and the child had spent very little time with his father.

The mother had previously obtained orders to enable her to take the child for assessments in relation to his autism and for him to be immunised. The father had not attended those hearings, although he had sent a number of unpleasant emails to professionals involved in the child’s care.

The emails sent by the father to the child’s school and other professionals, as well as notes posted through neighbours’ doors, were deeply unpleasant. He referred to the child’s special needs in an extremely offensive and disparaging manner. The father had also been banned by the school the year before for being aggressive and intimidating towards staff and using inappropriate language in a setting where young children could overhear.

The court emphasised that the circumstances in which the court will make an order terminating parental responsibility are rare, as it was a very serious matter and undoubtedly an interference with the father’s respect of private and family life pursuant to Article 8 of the European Convention on Human Rights. The removal of parental responsibility is governed by the child’s welfare and the circumstances of each case will vary enormously.

The mother’s case was that if the father continued to have parental responsibility, he would be able to use it in a way which was detrimental to the child’s welfare, as this was what he had done to date, and as the child grew older it would affect him and his family more and more. The court found that the child had probably already suffered some harm as a result of the conflict he had been exposed to in his early life, but that the most significant risk to his welfare lay in the future. His general care would be compromised if his family was placed under stress, and the need to make decisions about him led to conflict and delay. Moreover, the court agreed with the guardian’s opinion that the child needed a happy, confident mum, free from the anxiety, uncertainty and worry that she feared she would suffer if the father retained his parental responsibility.

The court found that the father had failed to show any significant commitment to the child and that it could not see any attachment developing between them. Further, the court considered whether any lesser order would be sufficient to meet the child’s best interests. However, as such orders could not cover every eventuality, it was likely that if a particular issue was not covered, the father would use that situation to behave in a way which was contrary to the child’s welfare. The court therefore concluded that the removal of the father’s parental responsibility was in the child’s best interests.

This case involves a unique set of circumstances which justified the removal of parental responsibility. In practice, it is more likely that the court will make other less draconian orders to advance the child’s welfare, although the outcome will depend on the individual circumstances of each case.