PM v MB & Anor

An application by an unmarried father for parental responsibility under the Children Act 1989 is governed by the child’s paramount welfare. The court should consider commitment, attachment, reasons for applying, and the likely exercise and enforceability of parental responsibility. An order will normally be appropriate, but may be refused where cogent evidence shows likely misuse causing welfare harm which protective restrictions cannot adequately prevent.

Parental responsibility and contact are separate welfare decisions. Its important status does not create a freestanding or presumptive factor. A restriction on further applications under section 91(14) may exceptionally be made without a history of repeated applications where clear evidence shows a serious risk of unacceptable strain, and the restriction is proportionate.

The father, who did not have parental responsibility because he was registered on his son’s birth certificate before the relevant legislative change, applied for parental responsibility and direct contact. Sheffield County Court refused parental responsibility and direct contact, ordered indirect email contact, and restrained further applications for two years under section 91(14) of the Children Act 1989.

A previous Court of Appeal decision had set aside an earlier section 91(14) order and remitted the matter for fresh applications: [2012] EWCA Civ 446. The present appeal, brought with permission limited to parental responsibility and the section 91(14) order, challenged the judge’s welfare evaluation, the weight given to the father’s motives, and the proportionality of the restriction.

1. Appeal dismissed unanimously. Lord Justice Ryder, with whom Lord Justice Beatson and Lord Justice Lloyd agreed, held that the judge applied the correct welfare approach to parental responsibility. The evidence entitled the judge to find that the father would use that status to exercise control over the child and indirectly over the mother.

2. Under section 4(1)(c) of the Children Act 1989, the child’s welfare is paramount. The relevant non-exhaustive considerations from Re S include commitment, attachment and the reasons for applying. A parental responsibility order should normally be made, but likely irresponsible or abusive exercise may justify refusal. The court must assess whether restrictions under section 8 could adequately control the risk. Here, the evidence of likely misuse and its effect on both the child and the mother meant that restrictions would not sufficiently protect welfare.

3. Parental responsibility is an important status, but it is not a separate freestanding or presumptive factor to be added to the welfare balance. Contact and parental responsibility are distinct decisions, although their factual contexts may overlap. The judge had properly assessed the child’s wishes, the father’s behaviour, and the likely effect of disclosure of educational and medical information.

4. The section 91(14) order complied with the guidelines in Re P, [1999] 2 FLR 573 CA. Repeated unreasonable applications were not essential. This was an exceptional case in which the welfare evidence showed a serious risk of strain from further litigation. A two-year, proportionate restriction was justified. The order could be varied or discharged if a material change, including the child’s attitude to contact, arose.

• Court of Appeal (Civil Division) — [2013] EWCA Civ 969: dismissed the father’s appeal against the refusal of parental responsibility and the two-year section 91(14) restriction.

• Sheffield County Court — 16 October 2012: refused parental responsibility and direct contact, ordered indirect email contact, and made the section 91(14) order.

• Court of Appeal (Civil Division) — [2012] EWCA Civ 446: set aside an earlier section 91(14) order and remitted the matter on the understanding that the father would make fresh applications.