C (Minors), Re

Section 4 of the Family Law Reform Act 1987 gives the court a broad discretion to grant a parental rights order to a natural father. The practical enforceability of the rights is relevant, but it is not an overriding condition and does not automatically defeat the application. The court must consider the overall circumstances, including the durability of the parents’ association, the father’s commitment and conduct, and the potential future value of parental status. A judge who has reached a concluded merits decision must not convert it into a general adjournment without giving the parties an opportunity to address postponement.

The natural father of two children born outside marriage applied under section 4 of the Family Law Reform Act 1987 for a parental rights order, alongside an access application under the Guardianship of Minors Act 1971. The county court refused access, considered a parental rights order inappropriate because most rights would require stringent restrictions, and directed that both applications be adjourned generally pending a further welfare report.

The father appealed only concerning the parental rights application. The issues were whether the judge had effectively determined that application before purporting to adjourn it, whether the postponement was procedurally fair, and whether present enforceability of parental rights was a condition of granting the order.

1. Appeal allowed. The county court judgment had fully examined and rejected the parental rights application. It was therefore not open to the judge to adjourn it as an afterthought. The proposed postponement was also procedurally defective because neither party had been given an opportunity to address it.
2. Section 4 of the Family Law Reform Act 1987 confers a broad discretion. The court may consider the prospective enforceability of parental rights, but the statute does not make enforceability overriding. The inability to enforce some or all rights at the application date does not automatically justify refusal.
3. The court considered the guidance in Re H (Minors) (Local Authority: Parental Rights) [1991] 2 W.L.R. 763, identifying the father’s commitment, his relationship with the children and his reasons for applying as relevant factors. It explained that Re H had rejected an unduly restrictive construction under which an order could be made only if all parental rights were enforceable.
4. Where the facts are fully established and no relevant disadvantage would result, the Court of Appeal may determine the statutory application itself under RSC Order 59, rule 10(3), rather than remit it.
5. Applying the section 4 discretion, the parents’ association, the father’s continuing commitment and his earlier regular contact justified granting the order. A parental rights order could retain real value as legal status and as rights in waiting if circumstances changed. The father’s willingness to assume the immediately enforceable duty to maintain the children counted in his favour. The adjournment order was set aside insofar as it concerned the parental rights application, and an order conferring all parental rights and duties was substituted. Costs were ordered on legal aid taxation, with a certificate for two counsel.

• Court of Appeal (Civil Division) — [1991] EWCA Civ 10: appeal allowed. The county court’s order was set aside insofar as it adjourned the parental rights application, and the Court of Appeal substituted an order granting the father all parental rights and duties.
• Guildford County Court — His Honour Judge Main, Q.C., refused access, treated the parental rights application as inappropriate on the basis of present restrictions and lack of enforceability, and purported to adjourn it generally with liberty to restore.