S (Parental Responsibility), Re

BACKGROUND: In these proceedings, I am concerned with two children whose welfare must be my paramount consideration. The children shall be referred to as ‘T’ and ‘S’. T, who is now nine years of age and S who is now eight years and two months of age. Although I refer to the two children, the issue in the case now is quite narrow and is limited to whether S’s father, the father, should be granted parental responsibility.

The children’s mother shall be referred to as ‘the mother’. T has never met his biological father. The relationship between his father and the mother ended before he was born. The mother and the father met whilst mother was pregnant with T, and they remained in a relationship for about seven years. S is the biological child of the father and the mother. Their relationship ended in about March 2023.

As I have indicated, the sole issue which now remains to be determined in these long-standing proceedings is whether or not the father should be granted parental responsibility for S. This is opposed by both mother and maternal grandmother. In addition, the Local Authority do not support the father’s application.

Today the father is represented by Miss Okell of counsel, the mother is represented by Ms Tait of counsel and the grandmother represents herself. The Local Authority, although not a party, is represented by Miss Wintle.

It is regrettable that the proceedings have been ongoing since the beginning of 2024. Father only became legally represented earlier this year having represented himself up until then.

I will set out, as briefly as I can, the history of these proceedings in a moment. However, before I do so I emphasise that I have read all the papers in the case. The case has benefited from judicial continuity throughout. And, as with any case, the fact that I may not refer or mention a document or something that was said to me during the proceedings does not mean I have not considered it.

HISTORY: All the parties have in fact made cross applications. The first applications in time were applications made by father and maternal grandmother. Following receipt of the Cafcass safeguarding information, the court made directions on the papers on 5th February 2024 which included the filing and service of statements. The first substantive hearing took place on 11th April 2024 which was a FHDRA. It was recorded on the order that both children were currently living with the maternal grandmother. Mother’s position was that she was seeking for the children to move to live with her in the Luton area. She was having video/telephone contact with the children. Father was seeking a live with order. After hearing from the parties, the court determined that it was appropriate to direct a section 37 report from the local authority. The report dated 31st May 2024 was subsequently filed and served. It is a detailed document.

The report outlines the background history. In brief, the relationship between the parents ended in March 2023 when mother returned to live at her mother’s home with the children. Mother subsequently moved down south in December 2023 to be with her partner. The children remained with maternal grandmother. I do not propose to rehearse the substantive matters which are set out in the section 37 report save to emphasise the following matters:

It is noted that following the parents’ separation, father had no contact with the children and subsequently was subject to a restraining order imposed for two years following an incident which occurred in April 2023 when the father threw a hammer through the window of maternal grandmother’s home when the children were present. This restraining order has subsequently been breached by the father as evidenced in the latest probation report dated 23 April 2025.

Father’s position as outlined in the section 37 report was that the mother was making many allegations about him which were untrue and that he simply wanted to have a relationship with both children and have contact. He made allegations about mother’s new partner using drugs and that he was emotionally abused by the mother during their relationship. The author of the report noted that neither of the children wanted to have contact with the father. The report noted that the children appeared to have adapted to living with their grandmother and there were no concerns about the care being provided by maternal grandmother. Ultimately, the local authority decision was 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.

The matter returned for a dispute resolution hearing on 19th June 2024. Amongst other matters addressed at that hearing, it was recorded that the local authority would assess father for contact but did not intend to limit mother’s contact with the children. A direction was made for the local authority to make final recommendations, and the matter was adjourned for a further dispute resolution hearing to 31st October 2024.

The local authority filed and served a statement dated 31st October 2024 in which they recorded that an independent social worker had prepared a parenting assessment of father which was negative and did not recommend the children should return to his care. The report also indicated that this assessment did not recommend family time between father and the children, but nevertheless the local authority have continued to try and promote family time with father and the children, especially S, but this had not progressed due to S not wishing to speak to her father. The local authority hoped to progress matters by more direct work with the children to ascertain, in particular, their wishes and feelings in the hope that some indirect contact might be put in place which might lead to direct contact in the future. The local authority was also completing a full assessment of the grandmother as to her long-term ability to meet the children’s needs.

The next hearing took place on 19th November 2024. The court directed the local authority to file and serve an updating statement with their final recommendations and adjourned the matter to 28th January 2025.

At the hearing on 28th January, father was represented for the first time. The court directed the local authority to file and serve an updating statement with a clear plan of action in terms of promoting contact between both children and mother and father and their final recommendations. The local authority’s position was for the children to be cared for by the maternal grandmother under a Special Guardianship Order, there being a positive special guardianship assessment.

It is important to note that at this hearing both mother and father’s positions changed. They clearly adopted a child focused approach and were no longer contesting the local authority recommendations as to where the children should live, but ultimately were both seeking contact arrangements. Both parents raised concerns that there was not a clear framework in place for promoting or progressing contact. Father was ultimately seeking to re-establish contact at the pace of the children and would begin this with writing letters of apology. The matter was adjourned until 1st April 2025.

The local authority filed and served an updating statement dated 14th March 2025. Although father had written an appropriate letter to the children, this was met with a negative response by both T and S. S did not want to hear what her father said. The author of the report indicated that she could not propose a clear plan of action regarding contact because both children were clearly expressing that they did not wish to have any contact with their father and would not engage even with indirect contact. The report noted that S was due to access support through Seedlings and was also awaiting support from CAMHS.

According to this updating statement, father maintained that the children were being manipulated by the maternal family.

The matter returned to court on 1st April when it was adjourned until today for a final hearing on the issue of parental responsibility only. It was agreed at this hearing that contact between the children and the mother would take place at least six times a year with any other additional contact to be agreed between mother and maternal grandmother.

In accordance with the directions made, all parties have filed and served further statements.

PARTIES’ POSITIONS: Father’s position is that he seeks parental responsibility for S. His statement sets out that S’s birth certificate currently has no father listed which, in his view is unjustified. He maintains that he was given incorrect information at the time of the registration of S’s birth, and thus missed the registration appointment, and that mother was advised by maternal grandmother not to include his name. His statement maintains that he played a big role in both children’s lives. He remains concerned about the living arrangements for the children despite the positive assessments of the maternal grandmother. He maintains his concern that allegations are made against him including alleged stalking and harassment and denies having attended a local park as the grandmother maintains and what he believes to be accepted by the local authority. His statement states that the reason he is seeking “parental rights” are due to his concern for the children’s well-being and denies that he would misuse those rights. He further sets out positive changes in his life including progress on his mental health and his co-operation with the local authority.

The mother opposes the application for parental responsibility. She maintains that father has been abusive and threatening not only during the relationship but since separation. In an earlier statement dated 31st March 2025, she exhibits messages where the father has made threats towards her and her partner, although, as I understand it, the father denies sending those.

Maternal grandmother also opposes father’s application. She refers to the incident where the father threw the hammer through the glass and “kidnapping” S when father retained her in his care against the agreement reached with the local authority. She believes that father’s application is motivated by wishing to cause further harm and it will cause disruption and instability in the children’s lives.

The local authority in their latest statement dated 13th May also do not support father’s application. This report sets out the most recent work undertaken with the children. The local authority indicate that they will encourage father to continue to engage with his probation officer and will work with the probation service to see if there is any further work which can be undertaken. The local authority report that according to maternal grandmother the father has been seen on three occasions at a local park. Father denies this. The local authority’s view is that father’s motivation is not rooted in his desire for S’s well-being but may be something which would cause further instability.

The progress report from the Probation Service dated 23rd April 2025 highlights that as part of father’s sentence on 26th April 2024 when he was convicted of breaching the restraining order imposed on 12th April 2023, that father was to attend a building choices programme, undertake a rehabilitation activity requirement and undertake unpaid work of 100 hours. The report notes that in relation to the building choices programme, father has been removed due to his failure to attend. He has not been able to complete his unpaid work because of medical notes being submitted submitting he is mentally unfit to work. Father is assessed as a medium risk to both mother and to the children. The author of the report describes a mixed response to probation supervision indicating that although father has attended appointments and engaged in conversations, his focus has been on the frustrations he has with the local authority and the inconsistencies he perceives have occurred within assessments and reports. He denied being a perpetrator of domestic abuse. The report notes that there appears to have shown some reflection on the impact of his actions when he threw the hammer through the window. The report concludes with a discussion about looking at unhealthy behaviours, indicating that the father has struggled with this but appears to have been more open in recent conversations and acknowledging his poor emotional control.

Legal framework

The law regarding parental responsibility is set out in section 3(1) of the Children Act 1989 and defines parental responsibility as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” No other guidance is given under the Children Act.

I do need to address the law in some detail. The leading text is from Hershman and McFarlane and I take the following from the chapter on parental responsibility:

First, there is confirmation as to who has parental responsibility. The mother always does, and the father can obtain it in a number of ways. I need not trouble myself with all the details save to say that the father seeks this by way of court order, on the basis that he and the mother were unmarried and his name is not on the birth certificate, which otherwise would have given him parental responsibility.

The child’s father may apply to the court for an order that he should have parental responsibility. Section 1(1) of the Children Act 1989 confirms that a child’s welfare is paramount in the decision of a father gaining parental responsibility. 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.

There is some consideration in Hershman and McFarlane to cases which pre-date the Children Act 1989, including D v Hereford and Worcester, [1991] Fam 14, a decision of Mr Justice Ward, as he then was, considering parental rights under the old Family Law Reform Act 1978. Ward J said, “Can this [father] show that he is the father to the child, not in the biological sense but in the sense that he has established or is likely to establish such a real family tie with the [child] that he should now be accorded the corresponding legal tie has he behaved, or will he behave with parental responsibility for the child?” The essence remains the same, will this father, with parental responsibility, behave in accordance with the child’s best welfare interests.

In a subsequent case, Re H (Minors) (Local Authority: Parental Rights) (No3) [1991] Fam 151, CA, 158, a Court of Appeal case, to which counsel have made reference today, the Court of Appeal held that in determining an application for parental responsibility, the court would take a number of matters into account, the so-called tripartite test, which includes: 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. It went on to say, the court is entitled to look at the circumstances of the applicant, including the fact that, in that particular case, the applicant was serving a term of imprisonment and the offence for which he was sentenced when considering such an application.

A further case, Re C & V (Parental responsibility and Contact) [1998] 1 FLR 392, 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.

Hershman and McFarlane examines other cases, one of which was Re M (parental responsibility order) [2013] EWCA Civ 969, which clearly lays out that if there is cogent evidence of likely misuse of the status, 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.

In the case of Re RH (A Minor) (Parental Responsbility) [1998] 2 FCR 89, CA, 94, the court dismissed an appeal against refusal to make an order for parental responsibility, holding that that judge was justified on the facts of that case, namely, that the father had inflicted injuries to a young child and denied responsibility for his actions.

Likewise, in another case, Re P [1998] EWCA Civ J0219-23, Hurst LJ dismissed an appeal in which the father made an application for parental responsibility. In this case, the father had close bond and commitment, but there were concerns that his motive was to try and interfere with mother's care of the child. Hurst LJ held, if the father’s behaviour towards the child is irresponsible and if, as a result, he poses a risk to the child, and the child needs more protection, those facts must be weighed into consideration against the making of an order for parental responsibility. So, a parental responsibility application may be refused if the court determines that inappropriate use of it would, or may, undermine the carer’s role.

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.

A more recent case, Re W (parental responsibility order: inter-relationship with direct contact) [2013] EWCA Civ 355,Thorpe LJ,, 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.

The CA decision in Re W is particularly informative and I set out the key passages from the judgments of Thorpe LJ and McFarlane LJ (as he then was)

At paragraph 5, there is reference to the fact that if the circuit judge, and lay justices before him, had been given the lead judgment of Re C and V (Contact and Parental Responsibility) [1998] 1 FLR 392, the position may have been different. Citing that that was a “classic judgment” in this field.

In the case of Re W, the lower court had concluded that direct contact risked real harm to the child and therefore, it should not be attempted but they reached that conclusion not on findings but recognising and accepting the mother’s distress. But as Lord Justice Thorpe noted at paragraph 9 of the judgment:

“It seems that they reasoned their way to the refusal of the parental responsibility application by concluding that the two applications were firmly interlinked, were effectively in the same boat and if the reason for refusing one was sound then the same reasoning directed the outcome of the other. If that was their approach, then it was clearly an erroneous approach.”

He then went on to cite the decision of Ward LJ, in Re C and V, which I quote here: “there are wholly separate applications. It should be understood by now that a parental responsibility order is one designed to do no more than confirm on the natural father the status of fatherhood which the father would have had if he had been married to the mother, there is also a sad failure to appreciate that when looking at the best interests of the child which are paramount in this application, as elsewhere, that a child needs for its self-esteem to grow up having a favourable, positive image of an absent parent and it is important that, wherever possible, the law should confer on a concerned father that stamp of approval because he has shown himself willing and anxious to pick up the responsibility of fatherhood and not to deny or avoid it.”

Thorpe LJ went on to say, “had that citation been large in the mind of the justices, I very much doubt they would have refused the father simply on the speculative anxiety, that were he wish to exercise the powers of responsibility that would significantly and adversely affect the child’s future stability”. At paragraph 12, appertaining to the particular facts of that case, the Court of Appeal said, “he [the father] must be sensitive to the mother’s concerns which were expressed as the potential to interfere with the child’s schooling, the potential to interfere with medical treatment, the potential to interfere with religious upbringing. The father must hear what has been expressed and respect it. He must behave with discretion, moderation and good sense. For if he does not, he will display an irresponsibility which will count against him in any future application which he may bring to extend indirect contact or for direct contact itself”.

Before I leave that case, I touch upon the second case of MacFarlane LJ, he aligned and supported the judgment of Thrope LJ, but went onto to emphasise, as I have done already, that in that particular case, there was no direct contact largely because of the mother’s incapacity to contemplate direct contact but that in itself did not justice the refusal of parental responsibility. In conclusion, MacFarlane LJ referred to the fact that parents being human beings, have benefits and detriments, capacities and incapacities which they bring to the task of establishing a healthy relationship between a child and each of his parents. He goes on to say, that disputes such as this are a problem of human relationships and in the end will only be resolved or ameliorated by a change in the key human relationship between the parents. Granting equal status, that being parental responsibility, was not simply a matter of ticking a box, it is to do with status and emphasising responsibility, rather than rights.

It is clear from the authorities, that in coming to its decision, the court must have regard to the welfare of the child and therefore the welfare checklist: ascertainable wishes and feelings, physical/emotional/education needs; likely effect of any change; age/sex/background/any other relevant characteristics; harm suffered or is at risk of suffering; parenting capacities; and range of powers available to the court. I have borne all of these in mind.

Discussion/findings.

All parties agreed to deal with this matter on submissions. Indeed, my last order reflected this, with the possibility of father’s counsel cross examining the social worker if necessary. Miss Okell indicated the father was content to deal with the matter on submissions.

Miss Okell’s submissions were essentially as follows: she submitted that father simply wants recognition that he is S’s father, and that S should know his identity. She submitted that father simply wants updates and knowing about S’s well-being and he is not seeking to exercise his parental responsibility in day-to-day decisions or management. In the future, he hopes to have a relationship with S, and he is committed to do this. Miss Okell referred me to the tripartite test which I have already referred to. She reminded me that the parties were in a relationship for about seven years and there is clearly an attachment between father and S during the relationship. She submitted that father’s reasons are genuine, and that hostility or allegations were not enough to deny him parental responsibility. The allegation about “hanging around” in parks seeking to disrupt is not proved and in any event the court could impose an appropriate order such as a prohibited steps order. She submitted that father has now shown insight and, in any event, granting parental responsibility would not prevent the worries that the mother, grandmother or the local authority potentially have. She again reminded me that the issue of contact and parental responsibility has to be looked at separately and that this is a father who simply wants legal recognition.

Ms Tait for mother submitted that motivation is effectively the only reason mother relies upon in opposing the application. She referred to the fact that the police are still investigating allegations of harassment and threats to kill stemming from earlier this year, and it would appear from the WhatsApp messages which were exhibited to mother’s statement, albeit father denies sending the message. She referred to the incident when the father took S to his home despite an agreement with the local authority that he would not do so, and when he threw the hammer at the window. She referred to him being a medium risk insofar as probation have assessed him and she does not accept that father has shown insight. Indeed, even in his recent statement dated 10 June 2025, she referred to the fact that father states “I remain concerned about the current living arrangements” despite agreeing to a special guardianship order in favour of maternal grandmother. Ms Tait submitted that father may seek to destabilise the relationship. He is still under probation for breach of a restraining order, and in any event, S knows who her father is. Father has attended local authority core group meetings up until the granting of the special guardianship order and has been invited to meetings which he has not attended. She submits that the local authority special guardianship support team can provide the father with updates. Although Ms Tait’s secondary position would be for the court to grant a prohibited steps order, she submitted that in any event S knows who her father is and if she knew that he had been granted parental responsibility, this would impact on her welfare. This is a father who would have no active role to play. She relied on the case of Re M emphasising that effectively any order granting him parental responsibility would be devoid of practical meaning or effect.

Maternal grandmother aligned herself with the mother’s position.

The Local Authority (who are not a party) also support the position of the mother and grandmother; whilst it was submitted that the local authority have effectively kept the “door ajar” in respect of the possibility of contact in the future, the local authority have very much listened to S’s voice and there is intensive work which has been undertaken and still requires to be undertaken as set out in the local authority evidence. Miss Wintle relied upon motivation and the potential disruption to S’s life. She emphasised that S knows who her father is.

Findings/applying welfare checklist and decision; this has not been an easy case. It is clear from all the authorities that although the tripartite test originally encapsulated in the case of Re H, the later decision in Re C and V makes it clear that this is not a comprehensive test and ultimately S’s welfare must be my paramount consideration. It is clear that in terms of S’s ascertainable wishes and feelings considered in the light of her age and understanding, that she does not wish to engage in any contact with her father, even indirect contact. The local authority statement dated 14 March 2025 sets out that although father wrote an appropriate apology letter, S simply did not wish to read it and said that she did not want to hear what he had to say. The local authority evidence refers to intensive work with S and emphasises the direct work and life story work which will be undertaken. Sadly, it would appear that S, even taking into account her age, has no wish to have any relationship with her father. Clearly, she is aware of the identity of her father.

In terms of her physical, emotional and educational needs, these are the same as for any child of her age. She needs stability of placement and the meaningful relationships with the important adults in her life. Fortunately, she now has that stability of placement with her grandmother. She needs this for her emotional security. She is clearly aware of her father’s identity but does not wish to have any relationship with him. Throughout the written material made available to me, the father has continued to state that he believes the children are being coerced into how they feel, and that the local authority has allowed this to happen (see for example father’s statement dated 31^st of March 2025).

In relation to the likely effect of any change in her circumstances, although father does not pursue any application for contact at this stage, he hopes this may happen in the future, but I am not dealing with the issue of contact.

In terms of S’s age, sex background and other characteristics, it is clear that as she grows older, she might ask more questions about the relationship between her parents. It is however clear that she knows the identity of her father and knows who he is should she wish to re-establish contact in the future.

In terms of any harm which S has suffered or is at risk of suffering, it is clear that she has been exposed to harm, in particular the incident in April 2023. Ms Tait very much relies upon this issue. If S learns that her father has been granted parental responsibility, it may well lead to further instability and have an emotional effect on her welfare.

Whilst essentially the tripartite test is the starting point, the real difficulty in my judgement for the father in this case is his reasons for applying. The court still has to consider the best interests of S. Even though contact and parental responsibility is not linked, they are related in the sense that they both require consideration of the best interests of S. A balancing exercise has to be performed weighing the factors for and against the granting of parental responsibility having regard to the paramountcy principle.

Whilst I do not make any further observations about the recent allegations that father may have been attending a local park (there being no evidence to support this), I do take into account all the other evidence. Throughout this case, the evidence of the local authority and indeed the probation service sets out father’s frustrations with children social care and his treatment which he alleges has been unfair. Although in the latest probation report it refers to him being able to reflect on his past actions, the probation officer indicates that father has struggled at looking at unhealthy behaviours and has consistently brought the conversation back to the mother and her family with whom he clearly has a very negative view.

Father’s most recent statement again refers to his “parental rights” and based on his concern for S’s well-being. In my judgement, he refuses to recognise the role of the grandmother in caring for S via and now having a special guardianship order. On balance, I am satisfied that despite father’s previous commitment and attachment to S, on balance, I am satisfied that his motive is to interfere or undermine the grandmother’s care of S. It is clear in my judgement that 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.

Overall, S’s welfare must be my paramount consideration. I am satisfied that making parental responsibility order is likely to be detrimental to her welfare and may cause emotional harm.

I therefore refuse the application.