Law report: Father's devotion to his child was not sufficient

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An application by an unmarried father for a parental responsibility order should not be granted where there were factors sufficiently adverse to the father, notwithstanding that he had shown commitment and attachment to the child.

Re H (A minor) (Parental Responsibility); Court of Appeal (Lady Justice Butler-Sloss, Lord Justice Henry and Lord Justice Potter) 29 January 1998

The Court of Appeal dismissed the appellant's appeal against the refusal of a county court judge to make a parental responsibility order in his favour.

The appellant was the father of the child but was not married to his mother. He had received a police caution for hitting one of the mother's children by a former relationship. When the appellant's relationship with the mother ended, the child would spend Friday nights with him.

After one such visit the child was found to have a number of bruises on his face and body, including bruising on the inner and outer ear and along the shaft of the penis and on the scrotum. He continued to have supervised contact with the appellant, who then applied for a parental responsibility order. The application was refused, and the appellant appealed.

Caroline Baker (Carvers, Madge Hill) for the appellant; Robin Rowland (Challinors Lyon Clark, Birmingham) for the respondent.

Lady Justice Butler-Sloss said that the appellant had denied having caused the injuries to the child, but the county court judge had concluded that he was not telling the truth. In deciding the issue of parental reponsibility, the judge had found that although the appellant was attached to the child, he had not shown the capacity to be responsible that was necessary for a parental responsibiliy order.

Section 4(1) of the Family Law Reform Act 1987 had, for the first time, given a father not married to the mother of his child the right to apply to the court for a parental rights order.

In Re H (Minors) (Local Authority: Parental Rights) [1991] Fam 151 Balcombe J had set out the following general principles to be followed in a parental rights application, whilst stating that the list was not intended to be exhaustive:

1) the degree of commitment which the father had shown to the child; 2) the degree of attachment which existed between the father and the child; and 3) the reasons of the father for applying for the order.

Section 3(1) of the Children Act 1989 had replaced the concept of parental rights by one of parental responsibility.

In Re G (A Minor) (Parental Responsibility) [1994] 2 FCR 1037 Balcombe LJ had applied the principles set out in his judgment in Re H to a parental responsibility application made under the 1989 Act.

Counsel for the appellant had relied on the three requirements set out by Balcombe J and had submitted that, once they had been established, the father was entitled to an order despite other factors to his detriment. She had further submitted that the judge had been wrong in principle to import into the criteria a requirement to act responsibly.

Those three requirements were, undoubtedly, the starting point for the making of an order but it was clear that Balcombe J had not intended them to be the only relevant factors in considering a parental responsibility order. In any event such an approach would be contrary to section 1 of the 1989 Act, which made the welfare of the child paramount.

It was generally in a child's interests to know and have a relationship with his father, but if, in reviewing all the circumstances, the judge considered that there were factors adverse to the father sufficient to tip the balance against the order proposed, it would not be right to make the order, even if the three requirements could be shown.

In the present case the judge had been fully justified in finding that the appellant was not fit to have parental responsibility for the child.

- Kate O'Hanlon, Barrister