D (A Child)

On an application to end parental responsibility, the child’s welfare is paramount. The welfare checklist may provide a useful analytical framework, but it is not mandatory. Parenthood, commitment, attachment and motive may be relevant, yet none creates a competing presumption or substitute test. The court must also apply the no-order principle.

Removal is fact-specific. Serious offending does not automatically place parental responsibility at risk, although indirect emotional harm may justify removal. A restriction on applications under section 91(14) of the Children Act 1989 serves a different, procedural purpose and is not a lesser version of removal.

The father, an unmarried man named on his son’s birth certificate, had parental responsibility under the Children Act 1989. Following his conviction for serious sexual offences against the mother’s two daughters, the mother applied to end that responsibility. The father sought annual reports about the child but did not seek contact.

Baker J ordered the removal of the father’s parental responsibility on 12 April 2013. The father appealed, arguing that the judge had misapplied earlier authority, failed to address the burden of proof concerning alleged sexual recidivism, and made a disproportionate order. The central issue was whether the statutory welfare test justified ending parental responsibility on the facts.

1. Appeal dismissed. The Court of Appeal unanimously upheld Baker J’s order removing the father’s parental responsibility.
2. Parental responsibility is an adult responsibility to secure the child’s welfare and must be exercised for the child’s benefit. It is a significant status, but it is not based merely on biological parenthood. Under the statutory scheme, an unmarried father acquires parental responsibility through the specified statutory routes and can lose it only by court order.
3. On an application under section 4(2A) of the Children Act 1989, the question concerns the child’s upbringing. The child’s welfare is paramount under section 1(1)(b). The welfare checklist is not compulsory under section 1(4), but may assist the court in structuring its reasoning. The no-order principle also applies. Paramountcy is the governing principle, and parenthood, commitment, attachment and motive cannot be elevated into a rival presumption or test.
4. The amendment made by section 111 of the Adoption and Children Act 2002 did not enlarge, narrow or recast the court’s powers or alter welfare paramountcy. The statutory scheme was Convention-compliant, and the argument based on differential treatment between married and unmarried fathers had no independent merit.
5. Fact-finding in family proceedings is quasi-inquisitorial, subject to proper procedural safeguards. The judge must decide necessary factual and evaluative questions even where the parties have not requested findings. Appellate intervention in findings of fact and value judgments requires the decision to be plainly wrong or unsupported by the evidence. Baker J was entitled to reject the expert evidence, rely on the father’s convictions and continuing denials, and find that his lies undermined his reliability.
6. The child had suffered serious emotional harm as a consequence of the father’s conduct and was at risk of further harm. Direct physical harm to the child was unnecessary. The case was fact-specific, and the decision did not make removal easier in other cases.
7. An order under section 4(2A) is a substantive welfare order. An order under section 91(14) is procedural and restricts access to the court. The two orders serve different purposes, neither is hierarchically less significant, and both may have draconian effects. Section 91(14) was inappropriate because the father had used the court’s processes properly and retained the right to apply without permission.

• Court of Appeal (Civil Division) — Appeal dismissed on 26 March 2014.
• Family Division of the High Court — Baker J ordered the removal of the father’s parental responsibility on 12 April 2013.