HIGF3268

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

FAMILY DIVISION

 _______ 

RE E (T26/99/OCP)

 ________ 

HIGGINS J

	This is an application by VB for a parental responsibility order in respect of EF (E) who was born on 18 March 1999.  VB and the child’s mother KF are not married.  KF is 20 years of age and has a much troubled background. She is presently detained in hospital, not for the first time, under the Mental Health (Northern Ireland) Order 1986.  KF and VB met in the spring of 1998 when both were resident in a night-shelter in Belfast.  A relationship developed between them.  E is KF’s second child.  L is her first child born on 5 October 1997.  L is the subject of a care order and an application to free her for adoption without parental agreement is presently before the court.  Social Services are of the view that KF is unable to care for E and L.  An Emergency Protection Order was granted in respect of E shortly after her birth and she is currently accommodated by the South and East Belfast Health and Social Services Trust under periodic interim care orders.  The original care plan was to assess the parenting capacity of K F and her relationship with E.  It is the Trust’s case that the mother’s personal difficulties (which appear to be formidable) have resulted in the care plan for E being changed to adoption and an application to free her for adoption without parental agreement is also before the court.  The intention is that all the proceedings in respect of both children be heard together but the first issue for the consideration of the court is whether or not to grant a care order in respect of the child E.
	E is beginning to exhibit signs of developmental delay, which may be related to her mother’s lifestyle and problems.  The relationship between KF and VB was short lived.  VB served a sentence of imprisonment.  After his release he made contact with KF and on 7 April 1999 arrived unexpectedly to see E during a contact visit with her mother.  He was due to appear in court in April 1999 but failed to do so.  He was “on the run” from the police for some time.  Eventually he was detained and in July 1999 was sentenced to a further term of imprisonment from which he was released in March 2000.  He has a lengthy criminal record mainly for burglary and theft.  In May 1999 KF informed Social Services that she did not wish to renew her relationship with VB and made allegations against him and stated  she did not wish him to be included in her assessment with E.  It is important to record that she was much troubled during the Spring of 1999.  In May 1999 she told the Guardian Ad Litem she did not want VB involved with E due to his criminal record and lifestyle.  VB has two other children from another relationship with whom he has no contact.  During the following 12 months KF had periodic contact with E  and she required admission to hospital on several occasions.
	On his release from prison in March 2000 VB contacted Social Services.  He is 25 years of age and currently engaged in another relationship.  He and his new partner live in a hostel in Belfast.  He seeks a Residence Order in respect of E and is willing to engage in a parenting assessment at Thorndale Family Centre.  As a putative father he requires leave to apply for a Residence Order and none of the exceptions referred to in Article 10 of the Children Order appear to apply.  In June 2000 an assessment of VB was carried out by Adoption Services and he attended all the sessions arranged for him.  His attitude was that E had not been abused in any way and therefore she should not be in care and instead should live with her natural family.  This was his reason for applying for a Residence Order and it is his intention to prevent E being adopted. He feels that E being in care reflects upon him in some paedophilic way.  The assessment revealed that he had little family support and demonstrated that he has a limited understanding of the needs of a child and how caring for a child would impact on his lifestyle.  The conclusion was that he was unable to show that he could provide for E on a long term basis.  His is presently on police bail.  KF is opposed to VB being granted a parental responsibility order and she has made a statement to that effect.
	Article 7 of the Children (Northern Ireland) Order 1995 makes provision for the acquisition of parental responsibility by an unmarried father.  He may acquire it by a formal parental responsibility agreement with the child’s mother, or, on his application, the court may order that he shall have parental responsibility for the child.  The order provides no criteria which a court should consider before granting parental responsibility to an unmarried father.
	Parental responsibility is defined in Article 6.
6(1)	In this Order “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.
E is the subject of an interim care order.  When a care order or an interim care order is in force, the authority designated by the order (the Trust) has parental responsibility for the child.  The designated authority or Trust also has the power to determine the extent to which a parent of a child may meet his parental responsibility for that child.  The fact that E is in care is no bar to her father obtaining parental responsibility for her – see D v Hereford CC 1991 1 FLR 205.  Furthermore the mother and father of a child can enter into a parental responsibility agreement in respect of the child and the designated authority (the Trust) cannot prevent it, despite legitimate concerns or criticisms which may be raised about the father – see Re X 2000 1 WLR 1031.  
In care proceedings a putative father (without parental responsibility) is only entitled to notification of the proceedings.  If he wishes to be joined as a party he is required to apply to the court.  If he has parental responsibility he becomes a party to the proceedings as of right.  In Re B 1999 2 FLR 408 Holman J said that, broadly speaking, if a putative father (without parental responsibility) wished to participate as a party in care proceedings he should be permitted to do so, unless there was some justifiable reason for not joining him as a party.  Ordinarily such a father ought to be heard before major decisions are taken in relation to his child.  Holman J reinforced this by stating that any father who was showing an interest in his child to the point of seeking to participate in proceedings was entitled, at least, to be spoken to by the guardian ad litem about the situation.
	In proceedings under Article 18 of the Adoption (Northern Ireland) Order 1987 (freeing without parental agreement), the court may direct that a putative father be joined as a party and he is entitled to notification of the hearing.  In any event he can object to the making of an adoption or freeing order and can give the Master notice of his intention to object in Form 4A – see Adoption Rules 1989.
	Before making an order under Article 18 of the Adoption (N I) Order (freeing without parental agreement) the court shall satisfy itself that any person claiming to be the father (a putative father) either has no intention of applying for a parental responsibility order, or, a residence order, or, if he did make any such application, it would be likely to be refused – see Article 17 and 18 of the Adoption (NI) Order 1987 as amended by Schedule 9 paragraph 143 to the Children (NI) Order 1995.  Under Article 18 of the Adoption (NI) Order a court may in certain circumstances dispense with the agreement of a parent or guardian to the making of an adoption order.  A parent, in relation to a child means any parent who has parental responsibility for the child under the Children (NI) Order 1995 – see Article 2(2) of the Adoption (NI) Order 1987 as amended by Schedule 9 paragraph 138(6) to the Children (NI) Order.  Thus it said that, if a putative father obtains parental responsibility, he can object to the proposed adoption and a freeing order can only be made if his agreement to the adoption is dispensed with on one of the grounds set out in Article 16(2).  Traditionally a ‘parent’ under the Adoption Order did not include a putative father and the use of the words ‘father’ and ‘mother’ in the Children (NI) Order Articles 5-7, would tend to support the traditional view that a parent is per se a married parent.
	Under Article 7 of the Children Order the court has a discretion whether or not to order that a father shall have parental responsibility for his child.  How and in what circumstances should that discretion be exercised?  The welfare of the child must be a relevant consideration.  Several cases in England and Wales suggest that the paramountcy principle in Article 3(1) applies, that is, that the welfare of the child is the court’s paramount consideration.  For my part, I doubt very much whether a court when considering whether or not to make a parental responsibility order is determining any question with respect to the upbringing of a child.
	If a mother and father agree that the father should have parental responsibility for the child no arguments to the contrary are effective to prevent it.  If a mother opposes the granting of parental responsibility to a father, her opposition to it must be a relevant consideration.  The opposition of a mother, depending on the reasons given (if accepted) must be a significant factor against the granting of parental responsibility, but, without more, should rarely be determinative of the issue.  Cases decided in England and Wales suggest three factors are relevant, but they are not an exhaustive list – see for example Re G 1994 1 FLR 504.  These three factors are –
	(i)	the degree of commitment by the father towards the child;
	(ii)	the degree of attachment between the father and the child;
	(iii)	the reasons why the father is applying.
	Attachment may not always be relevant.  Where an application is made immediately after birth and before the child has had an opportunity to form an attachment to his father attachment could not be a relevant issue.  There may be other good reasons why an attachment has not formed.  In this case the father was in prison for long periods of time and was not afforded contact while the child was in care.  Furthermore, a father may have no particular reason for applying other than the desire to have parental responsibility for his child, which bestows on him a status akin to parenthood in relation to the child.  The absence of specific reasons for applying therefore, should not be a bar to the grant of parental responsibility.  However where specific reasons are put forward they  require to be considered.  In this case the father wishes to obtain a residence order and at the same time to prevent E’s adoption.  This may be contrary to E’s best interests or it may promote them – but whichever, they are essentially matters for the court hearing the adoption proceedings.  As was stated in Re G, supra, it must be of some benefit to a child that she has a father who is sufficiently interested and concerned that he seeks parental responsibility for his child.  However a father whose underlying reason would be to interfere in the life of the child and create difficulties for a mother (or the child or both) would find it an uphill struggle to persuade a court that it would benefit anyone if he were granted parental responsibility.  No such argument is advanced in this case. 
It seems to me in this case, the most significant factor of the three which I have mentioned, is the degree of commitment shown by the father VB towards E.  That degree of commitment requires to be considered in the context of other factors.  The assessment of VB concluded that he was unable to demonstrate that he could provide adequate care for E on a long term basis.  Whether he could care for E or not, does not prevent him having a view on the proposed adoption which he could put before the court hearing the adoption proceedings.  His lifestyle and criminal convictions are matters which the court is entitled to consider – see Re P 1997 2 FLR 722.  The substance of the submissions made on behalf of the mother was that VB’s lifestyle and criminal convictions were such, that he should not be granted parental responsibility of E.  The Trust who, properly in my view, adopted a more neutral role in this application, pointed to the minimal nature of the degree of commitment and the lack of attachment.  VB’s convictions are mainly for dishonesty and are not as relevant as would be a very serious criminal offence or an offence of a sexual nature or an offence against children.  If a parental responsibility order is made the status of the father in the proposed adoption proceedings would be enhanced.  He might be able to require the Trust to satisfy the court that his agreement to the proposed adoption should be dispensed with.  This should not of itself be a reason for refusing parental responsibility (or for granting it).
The Children (NI) Order treats unmarried fathers differently from unmarried mothers.  Unmarried fathers do not have parental responsibility as of right from the birth of the child.  He has to acquire it in one of two ways.  If the mother refuses to enter into a parental responsibility agreement with him, the requirement that he persuade a court to grant parental responsibility is not treating him in so different a way from the mother (or a married father), as to breach his rights under Article 8 of the European Convention on Human Rights –see B v UK 2000 1 FLR 1.
	The court is required to balance the various factors which I have mentioned of which, in this case, the degree of commitment is the most relevant.  This applicant has shown a degree of commitment.  If there was evidence that E’s welfare would be adversely affected by her father gaining parental responsibility, then that would be a ground upon which to refuse it.  In the absences of clear evidence that E would be adversely affected, the mother’s objection apart, what grounds are there to refuse it.  The mother’s objection is a significant contra factor.  She knows the applicant intimately and, malice apart, her views carry substantial weight.  The applicant wishes to oppose the adoption.  Without parental responsibility he can still ask to be joined as a party and, even if not so joined, the court must consider his objection to the freeing for adoption proceedings and he would be entitled to ask the court not to grant an Article 18 order, but to consider granting him a Residence Order.  It is a fact there is no attachment between the applicant and E and that is relevant as are the reasons for that.  A degree of commitment is present and it is not an insignificant commitment.  However, E is in care and has been for some time; the Trust plan is for adoption (though that will be tested); the applicant has two other children with whom he has no contact; he is now in another relationship with a new partner and neither of them has a home; the child’s mother objects and her reasons are his lifestyle and criminal convictions.  When I consider his degree of commitment and his reasons for applying for parental responsibility, together with the various other factors I have mentioned above, I am not persuaded that this is an appropriate case in which to grant the applicant parental responsibility and I refuse the order sought.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

FAMILY DIVISION

 _______ 

RE E (T26/99/OCP)

 ________ 

J U D G M E N T
O F
HIGGINS J
________