Family Law Titles
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(Court of Appeal, Lloyd, Beatson, Ryder LJJ, 31 July 2013)
The unmarried mother and father separated when the child was 5. The father removed the child from school without informing the mother and avoided contact. When the police eventually tracked him down he returned the child to school. The mother sought a residence order and resisted contact between the father and child. The father provided undertakings and thereafter for 2 years he had supervised contact with the child.
The father later applied for parental responsibility and direct contact. The mother and child opposed direct contact and the grant of parental responsibility. The judge held that although the father had demonstrated his commitment to the child he was more concerned with his own rights and needs and would misuse the order to exercise control over the mother and child. The judge refused the father's application but made orders for indirect contact and a s 91(14) order for 2 years. The father was granted permission to appeal limited to the parental responsibility and s 91(14) issues.
The appeal was dismissed. It was a rare case when a father's application for parental responsibility would be refused but there were clear examples of circumstances where it was appropriate to refuse an order due to likely misuse of parental responsibility. Having regard to the father's behaviour, the mother's vulnerabilities and the child's wishes it could not be said that the judge was wrong in his evaluative judgment that it would be detrimental to the child's welfare to allow the father to exercise even limited parental responsibility.
The judge had been right to make a s 91(14) order on the basis that the child's welfare required it even though there was no history of repeated applications by the father. The judge had taken into account the child's wishes and feelings and accepted the guardian's evidence that the child needed to be free from the burden of litigation. The s 91(14) order was made in accordance with principle and was neither disproportionate as a response to the facts nor in its nature and extent.
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