Private Law
January 2023

Summary:

Hayden J made final orders following lengthy and protracted proceedings which included an order under s.91(14) Children Act 1989 to be in force until the youngest child reached the age of 18 and a final order for there to be no contact between the child and F.

Background:

F issued proceedings in October 2017. Hayden J handed down a judgement within fact-finding proceedings on 15 January 2021 (F v M [2021] EWFC 4); very serious findings were made against F at the fact-finding hearing, findings that were ‘at the highest end of the index of gravity, within the sphere of coercive and controlling behaviour’, which have not been appealed. On 24 March 2021, F issued an application for a child arrangements order for contact with both children, as well as an application to change the surname of the youngest child.

F and M are married and so F is automatically granted parental responsibility in accordance with s.2(1) Children Act 1989. M sought for F’s parental responsibility to be removed if an order for no contact was made.

F made an application to prevent statements and admissions made within these proceedings being disclosed to the police. Hayden J refused that application. F issued an application for permission to appeal to the Court of Appeal; permission to appeal was granted by the appeal was dismissed by the Court of Appeal. F then applied for permission to appeal to the Supreme Court and this was rejected by both the Court of Appeal and the Supreme Court.

The allocated Cafcass Officer had filed a report setting out her recommendations on 11 October 2021. The recommendations concluded that it would not be possible to safeguard the children from F’s emotionally and psychologically abusive behaviours, but did provide a recommendation for indirect contact once per year.

Decision:

Hayden J first considered whether F’s parental responsibility could be removed given that the parents were married when the children were born. It was noted that withdrawal of parental responsibility under s.4(2)(A) only applies to fathers who were not married to the mother when the child was born. Hayden J considered whether a distinction between married and unmarried couples was compatible with the European Convention on Human Rights; the court referred to Re A and B (Children: Restrictions on Parental Responsibility: Radicalisation and Extremism) [2016 2 FLR 977 and confirmed that a declaration of incompatibility in that case, but that the Secretary of State intervened and it was determined that there were legitimate reasons underpinning the legislative distinction, to provide birth mothers and married parents with irrevocable legal status.

Hayden J found it uncomfortable that in the current legal landscape, where there has been significant social change since the Children Act 1989 came into force, that M may not make an application to remove F’s parental responsibility simply because they were married when the children were born. However, Hayden J found that the protection sought by the mother could be provided under a prohibited steps order, and whilst F’s parental responsibility would remain intact, it could be stripped of any potency to reach into the lives of M or the children; this approach was endorsed by Sir Andrew McFarlane P in Sheikh Mohammed v Princess Haya [2021] EWHC 3480 (Fam). Hayden J made a prohibited steps order confirming that F would not take any steps in meeting his responsibility for the children without the consent of the court.

The court then went on to consider the application of s.91(14) Children Act 1989 as well as the updated provision under s.91A, practice direction 12Q and practice guidance. Hayden J confirmed that it was clear that these proceedings had been heavily litigated and that F had found an opportunity to extend his controlling behaviour into the court arena. It was confirmed that delay in this case was actively harmful for the children; Hayden J highlighted that an order under s.91(14) is not a punitive measure, but is a filter to protect a child and the parent whom the child lives with from the proceedings being used as a weapon of conflict and that the amended provision recognises the significant toll protracted litigation can have on children and individuals who may already be vulnerable. Hayden J made an order under s.91(14) until the youngest child reaches the age of 18 as it was agreed that this was necessary and proportionate and reflects the nature of the identified harm.

The court also considered the recommendations made by the Cafcass Officer; it was queried how the Cafcass Officer could recommend indirect contact because the parties are married but that the recommendation would have been for the revocation of parental responsibility had the parties not been married. The court determined that the Cafcass Officer had reverted to general principles without considering them in light of the particular circumstances of this case. Hayden J confirmed that the involvement of the other parent is not automatic and confirmed that the need for that contact and the potential damage that it might cause needs to be evaluated. The court determined that it was impossible to identify any benefit of indirect contact, but that it could easily be seen as unsettling and potentially harmful to the security of M and C. The Cafcass Officer reflected on her position during cross-examination. Hayden J confirmed that in this case, F has nothing to offer the children and the children are better off without F, and so made an order for no contact.

Summary:

Hayden J made anticipatory declarations, which are a rarity, so that a baby could receive medication for the treatment of HIV once born, if the mother declined to approve the child receiving such medication.

Background:

An application was made by the Trust for anticipatory declarations relating to an unborn child. The mother, who was 37 weeks pregnant at the time of the hearing, is HIV positive and had declined anti-retroviral treatment during the course of her pregnancy. The application by the Trust was to secure the administration of anti-retroviral medication to the baby to commence within 4 hours of birth and continue for 28 days.

The mother objected to the anti-retroviral medication as she believed that it was not good for the child and her own refusal to take the medication was due to making her feel unwell with vomiting and dizziness. The mother agreed to attend the hospital on multiple occasions to take the medication over the last few months of her pregnancy but changed her mind and refused the medication each time.

The Court heard evidence on how HIV is transmitted from the mother to the baby. It was clear that the opportunity to prevent transmission had passed and so the focus had shifted to available treatment to reduce the risk of infection to the child. The court noted that there was a substantial risk, given the history of the mother’s non-compliance, that she would refuse the medication being given to the child. This was coupled with the mother’s frustration that she felt that she was being forced into taking the medication.

Decision:

Hayden J initially noted how rare anticipatory declarations are.

The court confirmed that there is a very small clinical window for the administration of this medication to a new-born child, with the preference being that the medication be given immediately if possible.

Hayden J considered the issue of jurisdiction and confirmed that the Local Authority had no power to intervene without court order and that, while the child is in the mother’s womb, the court has no jurisdiction under the Children Act 1989 or under the wardship jurisdiction. It was also confirmed that there is no jurisdiction under the Mental Capacity Act 2005 in the Court of Protection; just because the mother’s views in relation to the proposed treatment go against medical opinion, this does not challenge or rebut the presumption that the mother has the capacity to make her own decisions. The power of the court in this application comes under the inherent jurisdiction.

The court then explained the importance of making applications such as this at an early stage, given that the declarations are anticipatory and can be considered in advance of the contemplated situation. Hayden J reiterated that these applications need to be brought in a timely way, if possible, so that issues can be determined without added time pressure.

Hayden J considered the complex risks at play if the mother refuses treatment for the child either immediately or during the course of the treatment; it was confirmed that there could not be confidence that the mother would willingly consent to the child receiving the required treatment. Hayden J confirmed that it would be in the child’s best interests to receive the medication being offered for the best change of avoiding infection.

The court was required to consider whether the circumstances of this case were exceptional enough to justify these declarations being made. The Official Solicitor made submissions that these circumstances were not exceptional to justify the declarations being made in the absence of the mother, as the harm that may be caused if the child does not receive the medication is less significant than believed. The Official Solicitor noted that many people live a full and active life whilst HIV positive; the court did not agree with the opinion of the Official Solicitor given the stigma associated with the infection and the real and enduring impact on those people with the disease. Hayden J was satisfied that the circumstances of this case are exceptional enough for the declarations to be made in the absence of the mother.

The court made the declarations as requested by the Trust.