This case caught my eye, because the District Judge rehearses the law on PR. Whilst we are all familiar with the tripartite test, there is just a little more to it than that ! The case doesn’t really create new judicial law, but is a good reminder of the current law.
This case concerned two children T & S (a girl), aged 8 and 9 respectively (T had never met his bio father). The narrow issue before the court was whether F should be granted PR of S. It was opposed by M, MGM and LA. M was pregnant with T when M and F met and they separated in March 2023. Proceedings began in early 2024, MGM and F issuing private law applications. Proceedings dragged on. The first substantive hearing took place on 11th April 2024 which was a FHDRA. A section 37 report was directed from the local authority. Parents raised cross allegations.
Post parents separating, M initially lived with MGM and children, but M moved ‘down south’ to be with her new partner, and the children remained with MGM who sought an SGO. The LA decided to enter into the PLO pre-proceedings process to allow for a period of assessment, and that the children remain on child protection plans with intensive work to be undertaken with the family.
At the final hearing in June 2025:
- F had had no contact with the children
- F was subject to a restraining order imposed for two years following an April 2023 incident [F threw a hammer through the window of MGM's home when the children were present].
- The restraining order had subsequently been breached by the father.
The s37 report noted:
- that neither of the children wanted to have contact with the father.
- the children appeared to have adapted to living with their grandmother
- there were no concerns about the care being provided by maternal grandmother.
At a January 2025 hearing both M and F adopted a child focused approach and were no longer contesting the local authority recommendations as to where the children should live (SGO), but both were seeking contact arrangements; the father maintained that the children were being manipulated by the maternal family.
There were several interim hearings until final hearing in June 2025.
Law.
(1). The DJ defined PR as per s31 of CA 1989, saying ‘The welfare checklist under Section 1(3) of the Act need not apply, but the court must consider if making such an order would be better for the child than making no order.’
(2). He further referred to Hershman and McFarlane and cases which predated the Children Act 1989 eg. D v Hereford and Worcester, [1991] Fam 14, and added ‘will this father, with parental responsibility, behave in accordance with the child's best welfare interests’.
(3). He considered the tripartite test in Re H (Minors) (Local Authority: Parental Rights) (No3) [1991] Fam 151, CA, 158 - has the father shown appropriate commitment to the child; is there attachment between the child and father; and, thirdly, what is the father's motivation in applying. The court in Re H also said, the court is entitled to look at the circumstances of the applicant.
(4). The DJ cited Re C & V (Parental responsibility and Contact) [1998] 1 FLR 392, wherein Ward LJ stressed that the tripartite test was not a comprehensive test, but simply listed the factors to be used to answer the more general question of whether or not a father has shown genuine concern and a genuine wish to assume the responsibility in law which he already had by natural causes.
(5). And Re M (parental responsibility order) [2013] EWCA Civ 969, clearly lays out that if there is cogent evidence of likely misuse of the status, it could justify refusal of the application and in accordance with the decision in C and V, an application for contact may be relevant, but they are separate and distinct applications to be examined from different perspectives.
(6). He also looked at other refusal cases Re RH (A Minor) (Parental Responsbility) [1998] 2 FCR 89, CA, 94, Re P [1998] EWCA Civ J0219-23,
(7). He considered Re W (parental responsibility order: inter-relationship with direct contact) [2013] EWCA Civ 355,Thorpe LJ in which it was held that although a court had been entitled to refuse father's application for direct contact with his son on the basis that the mother's fears from his playing any role in the child's life put his future stability and well-being at risk. The Court of Appeal held that it was wrong to refuse to grant the father parental responsibility based on the same reason; the parental responsibility application should have been considered separately and not refused because of the mother's speculative anxiety about contact
DJ Knifton finalised the position: ‘Essentially, in summary, the court must consider the three-stage test: the degree of commitment the father has shown towards the child, the degree of attachment between him and the child and the reasons why he is applying for the order, but these three requirements, although a starting point, are not intended to be exhaustive and the court must take into account all the relevant circumstances bearing in mind that section 1 of the Children Act applies and the welfare of the child is therefore paramount.’
The DJ refused F’s application for PR because:
- F’s motive was to interfere or undermine the grandmother's care of S
- his past behaviour has been irresponsible.
- he has been the subject of a restraining order and
- the subject of a conviction for breaching that order.
- And the making of a parental responsibility order is likely to be detrimental to S’s welfare and may cause emotional harm
- Overall, S's welfare must be my paramount consideration.
I hope this short review can be used as a short aide memoire in a case where a father applies for parental responsibility.
