Ms X v Mr Y  EWHC 3170 (Fam) (11 December 2023)
Removal of father's parental responsibility and judicial comment on management of highly contentious private law proceedings.
By the time of this final hearing, proceedings alone had been going on for more than 3 years. On 8 November 2018 a final order was made by DDJ Flood by consent, which provided that the F would have contact with the children three times per week. The M says that she was coerced into agreeing this order by the F. The contact then stopped and the M said that this was because she was frightened of the F and because of the criminal proceedings. Importantly, by the time of this hearing, F had not seen the children since late 2018, when they were two years old.
In October 2020, the M filed an application to vary the Child Arrangements Order made on 8 November 2018. This application ended up coming before Family Presiding Judge for the Midland, Lieven J. A large part of the delay of these proceedings stemmed from the F's criminal charge and ultimately conviction for coercive and controlling behaviour against the M in May 2022. He was acquitted of two counts of rape. On 14 July 2022 he was sentenced to 30 months imprisonment.
HHJ Handley found, with the agreement of both parties, that no fact finding hearing was necessary in the light of the F's conviction. Cafcass were ordered to complete a s.7 report. M subsequently applied for the removal of the F's parental responsibility in the light of the Cafcass report. A final hearing was listed, which was adjourned for various reasons and there was a discussion on how long a final hearing should be, with the M’s counsel suggesting 8 days.
Lieven J relied on M and F’s witness statements, but conclusions were greatly based on the nature of the F’s convictions, as well as the subsequent probation report and Cafcass reports.
A helpful overview of removing PR was including within the judgment.
Firstly, the correct approach to this issue is summarised in The Red Book 2022 [2.199] which outlines the key principles as follows:
"(a) the significance of parental responsibility is the contribution to a child' s welfare that status confers on the adult concerned. The concept of parental responsibility describes an adult's responsibility to secure the welfare of their child which is to be exercised for the benefit of the child not the adult;
(b) if the circumstances are such that the court would not conceivably make a parental responsibility order where one does not already exist, then the circumstances are likely to indicate that parental responsibility could be properly terminated (Re P (Terminating Parental Responsibility)  1 FLR 1048;
(c) the court should consider that it is appropriate to terminate parental responsibility where there is no element of the bundle of responsibilities that make up parental responsibility which the father could in present or foreseeable circumstances exercise in a way that would be beneficial for the child (CW v SG (parental responsibility: consequential orders)  2 FLR 655);
(d) where the Art 8 rights of a parent conflict with the Art 8 rights of a child, it is the rights of the child that take precedence (Yusuf v The Netherlands  1 FLR 2010)."
Secondly, in D v E (Termination of Parental Responsibility)  EWFC 37 MacDonald J said at :
"The authorities set out above make clear that the court must ask itself whether, were the father now to be applying for an order conferring parental responsibility for G on him, an application for parental responsibility would be granted. In seeking the answer to this question the court will consider, amongst other factors, evidence of attachment and a degree of commitment, the presumption being that, other things being equal, a parental responsibility order should be made rather than withheld in an appropriate case. I also have regard to the fact that the removal of parental responsibility from a parent is [a] serious step that must be justified on the available evidence and proportionate. However, these factors must all be considered with a view to answering that the fundamental question for the court, namely whether it can be said to be in G's best interests for the father to have parental responsibility for her, taking her welfare as the court's paramount consideration."
Lieven J in this case reached the view that it was proportionate and appropriate to remove parental responsibility as the facts of the case were exceptional (albeit by no means unique). Lievan concluded:
“Although coercive control is not itself exceptional, the scale here is, as is shown by the very lengthy prison sentence. The nature of the control has created real fear and intimidation of the M and any further involvement of the F in her or the children's lives will only perpetuate that fear.
The F has given absolutely no indication that he has learnt from the prison sentence and his past experience. The probation service report makes that clear.
Importantly, the children have no real or substantive attachment to the F, having had no contact with him for almost five years. This is not because of the delays in the court process, although doubtless that has not helped, but rather because of the F's criminal conduct and conviction.”
Lievan J dealt various other applications by the M and concluded by making helpful and important comments on case management:
Firstly, in a case where the Father is serving a custodial sentence of significant length for domestic abuse, it is unlikely to be necessary to conduct any further fact finding. In this case there were at least three written reports which were relevant to the welfare of the children and the information the court needed. Therefore, the need for oral evidence was extremely limited.
Secondly, there is no right in Family Court proceedings to cross examine a witness pursuant to Article 6. That right exists under Article 6(3)(b) in respect of criminal charges, not other proceedings. The duty under Article 6 in respect of Family Court proceedings is to ensure that all parties have a fair trial. How that is achieved is for the Judge exercising their case management powers. Pursuant to FPR22.1 the Courts has the power to control the evidence it hears.
Thirdly, it is essential that courts list cases with short and proportionate time estimates. Here, once the F's conviction was made then the case only justified at the most, fairly short evidence from the mother, father and the Cafcass officer. In fact, it was not necessary to call the Mother or the Father given their written statements and what was obvious from the papers. Therefore, one day was the appropriate time estimate in this case.
Lieven J commented that the call to "Make Cases Smaller" applies just as much if not more in private law cases as in public law ones. The time estimates must focus on the issues in the case and not the amount of time that the parties, and/or their advocates wish to take. There is a duty on the advocates to assist the court in focusing on the real issues in the case and setting a proportionate timetable.