In the first case of its kind since 1995, the High Court has terminated the parental rights of an unmarried father after he was jailed for sexual abuse.
CW v SG concerned an a cohabiting couple who met in 2002 and had a child together, referred to in case reports as D. The mother had five other children and suffered from depression. The man, meanwhile, was a user of illegal drugs and the pair had a “turbulent relationship” according to the judgement.
In 2009 the man was arrested after the woman’s eldest daughters claimed he had sexually abused them. He pleaded guilty and was sentenced to four years in jail, of which he served two.
As soon as the father was released, the mother went to court and asked for his legal rights as the parent of D to be removed. The man was named on D’s birth certificate and therefore had parental responsibility under Section 4 of the Children’s Act 1989.
The father, meanwhile, countered with an application for a ‘specific issues order’ which would oblige the mother to provide annual reports on their son’s welfare.
Sitting in the Family Division, Mr Justice Baker rejected an argument that the court’s ability to end the parental rights of an unmarried father was in breach of the European Convention on Human Rights, in particular Articles 8 and 14. These set out the rights to respect for family life and freedom from discrimination. Married fathers cannot have their parental rights removed.
The judge’s decision was made on the basis of a 1999 European Court of Human Rights ruling, in which it had noted, amongst other things, that “the relationship between natural [unmarried] fathers and their children varies from ignorance and indifference to a close stable relationship indistinguishable from the conventional family unit.”
Mr Justice Baker described the ruling as “still good law”. He also accepted the recommendations of a Cafcass officer, who:
“….expressed the view that D’s position in the family, and his self-esteem, were affected by the fact that he was seen as the father’s child. In this respect, it was not so much the current application [by the father] that concerned her but, rather, the possibility of further applications which she felt would add to the stigma attaching to D. She thought there would be very many difficulties if the father started to exercise his parental responsibility.”
The judge described this as “perceptive and persuasive” and said D’s sense of security and his emotional needs would be threatened by an active relationship with his father.
He did, however, accept a recommendation by the Cafcass that the father be allowed to write his son a letter:
“…which could be disclosed to his son at such a time in his life that he becomes interested and inquisitive about his birth father, as a way of expressing his feelings. This letter could highlight the love he feels for his son and the disappointment he feels about not being a part of his life for so many years.”
The officer had added:
“I think it would be important that [the father] would be able to acknowledge that he was responsible for the family’s situation. However, in an effort to ensure that D had the best possible chance to live within a stable family environment, he has put his son’s wishes and needs before his own.”