RE SM (A MINOR) (NATURAL FATHER: ACCESS) Family Division Sir Stephen Brown 3 December 1990

RE SM (A MINOR) (NATURAL FATHER: ACCESS) Family Division Sir Stephen Brown - 3 December 1990

Access - Illegitimate child aged 2 years - Relationship between mother and natural father ending before child's birth - Mother remarried - Mother refusing access by natural father -Justices granting access to natural father whether justices had failed to pay sufficient attention to particular facts of the case  Whether appropriate to order access

In 1987 the mother formed a relationship with the putative father. They never married. Shortly after she knew that she was pregnant, she left the father and L was born in March 1988. Following the birth of L, the father had access to the child regularly once a month. This continued for some 22 months until February 1990, when the mother told the father that she intended to marry her former husband, which she subsequently did in March 1990. Since February 1990 the father's access to the child had been denied. In custody proceedings in the magistrates' court, an order was made granting the father access once a month. The mother appealed, contending that, inter alia, the justices had not properly taken account of the fact that the child was now in a stable family unit and that access to the father was likely to have a disruptive destabilising effect upon the child and to cause confusion. She invited the court to come to the conclusion that the justices were plainly wrong in their decision.

Held  allowing the appeal - the justices had granted access on the theoretical basis that it was generally in the best interests of the children that they should know their fathers', and did not apply their minds to the particular facts of the case in question and the very strong reasons for denying access in this case. The justices had regard to the professional opinion of the welfare officer who recommended that the court should make an order allowing the father access to L, however, the welfare officer had failed to indicate any positive benefit from contact with the natural father which would obtain in this case. It appeared that she had also overlooked the particular facts of the case and did not sufficiently consider the practical consequences. She did not state in her report anything more than the theoretical general principles in favour of access. It was accepted that access could not sensibly take place in the matrimonial home of the mother and her present husband. The welfare officer, together with the justices, did not pay sufficient attention to the fact that there was no bond between the natural father and the child, and that the bond was entirely with the mother and with the stepfather. It seemed inescapable that, if the father were to be regularly introduced into the family setting, there would be likely to be confusion in the mind of the child and, unfortunately, a risk of destabilising the family unit. It would be wrong to run those risks, and the justices failed correctly to carry out the balancing exercise in this particular case. Accordingly, the appeal would be allowed and an order made that access should cease.
Starling v Starling [1984] FLR 135 and Re W (A minor) (Access) [19X9] 1 FLR 163 followed.
 

Cases referred to in judgment
Starling v  Starling (l983) 4 FLR 135, CA W ( A minor) (Access), Re [1989] 1 FLR 163. CA
Philip Turl for the mother
Charles Eastwood for the father
 

SIR STEPHEN BROWN P: This is an appeal by the mother of a little girl, L, who was born on 17 March 19~8 C)n 25 July 1990, at the magistrates' court, she sought an order that she should be awarded the custody of L. The father of I is a man called Mr A. He is the putative father of L and he sought access to the child. The magistrates made an order that he should have access for 3 hours once a month. The order expressed the matter in these words: . . . the parties to arrange day and times' 

It is against the order relating to access that the mother now appeals to this court. She asks this court to reverse the decision of the magistrates in relation to access, and to say that they came to a conclusion which was plainly wrong, and to order that there should be 'no access' in favour of the respondent father. 

The facts are somewhat unusual. They relate to the question of access to an illegitimate child. In this case, the little girl was born to the mother at a time when she had left her husband and had obtained a divorce from him. But very shortly after she knew that she was pregnant and was expecting this child by Mr A, she left him. He was no longer living with the mother by the time the child was born, in March 1958. Subsequently, the mother remarried her present husband from whom she had parted earlier and had obtained a divorce in 1987. L has at all material times been brought up as the child of the mother and Mr B, her present (and indeed her former) husband. For some 22 months the putative father, 'who is the respondent to this appeal, had been seeing the child, not as her father but on occasions when he was introduced as an uncle or a friend. The mother submitted that in this case the justices did not properly take account of the fact that the child was now in a stable family unit, and that access by the putative father was likely to have a disruptive, destabilising effect upon the' child and to cause confusion. She invites this court to come to the conclusion that the justices were plainly wrong in their decision. 

In their reasons, the justices find the following facts, which are not in dispute: that Mr A and the mother met in 1987 at their place of work, that she embarked upon a sexual relationship with Mr A, and in May 1987 left her husband to reside with him. In July 1987 she became pregnant and the relationship with Mr A then broke down and the mother returned from Lancashire, where she had been living for a short time with Mr A, to live with her mother in the south of England. At that time, the justices found, she had not told Mr A that she was expecting his child. She did so subsequently, however, and before the child was born she had been divorced from her husband. However, she later remarried her former husband in March 1990. The magistrates found that she lives with her husband and her child, that Mr A is a single man who lives alone in Lancashire, that he had been paying £100 each month towards the maintenance of the child, but counsel informs me that he has not done so now for many months. The justices further found that, following the birth, access by Mr A to the child took place regularly once a month, and that Mr A spent a Saturday afternoon once a month with the child in the presence of the mother.

They went on to find that the mother had been told by Mr A by letter at Christmas 1988 that the visit on a Saturday each month was proving to be a strain, and it was agreed that access should continue on one Sunday each month. The

justices found that access continued until February 1990, when the mother told Mr A that she intended to remarry her former husband. Finally, they found as a fact that, since February 1990, access to the child by Mr A has been denied to him by the mother and her present husband. 

The justices record the submissions made by both advocates, in particular that the welfare of the child is the paramount consideration and that to deprive a parent of the right of access is very exceptional. They say:

'It is the basic right of a child to have access to its natural parents, which should only be denied if the court is satisfied that it is in the interests of the child that access should cease.'

Then in para. 6 they give their reasons:

(a) There had been a relationship between the child and the natural father for 22 months, on at least a once-a-month basis, without any apparent detriment to the child.
(b) The new family unit consisted of two mature people. There was no risk of the relationship foundering, by virtue of the fact that this was a remarriage about which the parties had thought for a considerable time.
(c) The fact that the father had not lived with the child was not relevant, as the child was of tender age.
(d) It was unlikely that access would have a disruptive or destabilising effect on the child or the family unit, by virtue of the maturity of all parties and the affection to the child expressed by all parties.
(e) It was unlikely that there would be confusion to the child, as the natural father was content to be known as an uncle or friend until such time as the child was made aware of who her natural father was.

They went on, in subpara.(f), to express the view that the husband accepted the important role of the stepfather as daddy on a day-to-day basis.

(g)It was in the interests of the child to re-establish her contact with her natural father whilst young.
(h)Weight was given to the professional opinion of the welfare officer stated in the welfare report.

The reasons' show that the decision was that of two of the justices, and their names are given. The third justice dissented.  

The mother appeals to this court, and Mr Turl, on her behalf, focuses in particular on the three subparas. (c), (d) and (e) of para.6 of the justices' reasons to which I have referred, and submits that those three reasons are invalid in the light of the evidence that the justices heard, and of an objective consideration of the situation with regard to the child, and to any relationship which might be promoted with the respondent Mr Turl argues that in this case the mother and her husband have established a stable family unit, that the little girl is being brought up to regard Mt B as her lather, and he points to the justices' reason in sub-para. ~f) which state that the husband accepted the important role of the stepfather as 'daddy' on a day-to-day basis. Mr Turl submits that this is one of those exceptional cases where to make an order for access in favour of the putative father would be likely to lead to confusion, if not to disruption of the life of this little child. She is growing up in the belief that she lives with her mother and 'daddy' in a normal stable family setting.

Mr Turl has invited the court's attention to three authorities. In particular, he cited a case in which he appeared before the Court of Appeal, Starling V Starling

(1983) 4 FLR 135. That was a case involving a child who had not known his father and, after the breakdown of the marriage between his mother and his father, had not seen his father for 3zt years. The deputy judge had ordered access. The Court of Appeal reversed his decision and allowed the appeal, stating that that decision indicated that the judge in that case had granted access on the;

'theoretical basis that it was generally in the best interests of children that they should know their fathers, and that he had not applied his mind to the very strong reasons for denying access in this case, and therefore that he had exercised his discretion in a way which was plainly wrong'

The particular facts were different, but there were passages in the judgments of the Court of Appeal upon which Mr Turl relies. In the leading judgment of Sir David Cairns at p.137C, Sir David referred to a passage in the judgment of the deputy judge where he had said:

"it is generally considered right in the interests of the child that the child should have an opportunity of getting to know both parents, and I take the view that it is wrong to deny access without very strong reasons".

Sir David then continued in his judgment:

'What, with respect to him, I feel that the deputy judge failed to do here was to apply his mind to the very strong reasons that exist for denying access in this case. I can see no prospect of benefit from it. I can see the prospect of damage. In my view this is one of those rare cases where one can say that the way in which the deputy exercised his discretion was plainly wrong, and I would allow the appeal and set aside this order.

Templeman LJ, at p.137E, said

'I agree. What good can the father do to this child? The answer is, none. What harm can he do him? The answer is, possibly a great deal. To take this child across to Ipswich to see a stranger in the office of the welfare officer fills me with horror. Any suggestion as to what might follow after that is simply to delve into the mists of uncertainty.'

Ormrod LJ, at p.138C, said: 

'I agree. The, judge, in my judgment, did not put to himself the crucial question in this case, which is: Will starting access now, after this long 1apse of time, be of any positive benefit to the child? The efforts of counsel have wholly failed to indicate any possible benefits to the child except the more or less theoretical one that it is good that children should know their fathers, and that was the reason really why the judge made his order.'

Of course it is true that in that case the father had not seen the child for 321 years. The emphasis which Mr Turl seeks to place on that decision, however, lies in the passages in the judgments which indicate that the judge in that case had relied on what was termed 'the more or less theoretical basis that it is good that children should know their fathers' and the failure of the judge in that case to apply his mind to the particular facts of the case in question. 

Mr Turl then invites the court's attention to the case of Re W(A Minor) (Access) [1989] 1 FLR 163. That was a decision of Heilbron I which was subsequently upheld by the Court of Appeal. It also concerned a child who was illegitimate, born as a result of an intermittent association between his mother and father which had ended before the birth of the child. In that case, the mother had formed a relationship with another man (to whom she later became engaged to marry) before the actual birth of the child. There was evidence that the child was being cared for in a happy family atmosphere, bonded to his mother and his future stepfather, who was the only 'father' he knew. There was no criticism of the child's natural father, who saw his son in hospital when he was born and visited him frequently during the months following his birth. The magistrates had allowed access, and the judge allowed an appeal by the mother from the magistrates' decision and ordered that access should cease. She said, in particular, that the magistrates had extracted general principles from certain cases without adequate knowledge as to the particular facts and, in relying on those general principles, they had been deflected from looking at the specific problems in the case before them. In particular, they had attached disproportionate weight to the blood tie between the natural father and the child, while failing to take into account the emotional disturbance likely to be caused to the child and his family background by the introduction of another, and unknown, father into his life. She held that the magistrates had failed properly to perform the balancing exercise. and allowed the mother's appeal. 

In this case, the welfare officers report is relied upon by counsel for the respondent. The magistrates. in their reasons, state specifically in sub-para.(h) that they had regard to the professional opinion of the welfare officer. The welfare officer had recommended that the court should make an order allowing the putative father access to his daughter once a month. But the welfare officer said this;

'I appreciate: (1) that L does not know her father. they have never lived in the same house, and there is no bonding. In the past he has been referred to as 'Uncle A (2) that there is no obvious place for access. I can accept that Mr B does not want Mr A in his home, and that at the moment L is too young to be separated from her mother and go off with an unknown man.'

She went on in her report to say:

'However, I am of the opinion that L could only benefit from contact with her father and his parents. Experience shows that if access is established while the child is still young, it can become an accepted and pleasurable part of life and a good relationship formed with the absent parent. Disruption is more likely to occur if the child learns the truth at a later date.'

I am bound to say that I cannot see that the welfare officer indicated any positive benefit from contact with the natural father which would obtain in this case. It seems to me that she did not properly evaluate the position of the child in a stable family unit and she does not state in her report, in my judgment, anything more than the theoretical general principle in favour of access. She says, 'Experience shows that if access is established while the child is still young, it can become an accepted and pleasurable part of life and a good relationship formed with the absent parent', but she says nothing about the particular facts of this case. 

The magistrates heard evidence from the mother and from Mr A. The mother made it clear that she feared that if access were to be resumed, there would be likely to be confusion and disruption. She felt that the respondent could not be introduced as the father, and indeed Mr A accepted that that was the position. 'Telling L that Mr B is not her father is not going to be a bolt from the blue'; that was the mother's desire. 'We want to have this as background information. We don't want L to feel different when we have other children and she goes off to see Uncle A.' Mr B also gave evidence. He felt that any access order would be likely to be disruptive and upsetting to the child. 'No one knows the effect it will have on L', he said. 'We know she is happy as she is at the moment. We know her sufficiently to try and do the best for her. We do not feel there is any benefit in such disruption to take her off to see someone she doesn't know sufficiently.' 

Mr A himself agreed in his evidence, when cross-examined:

'If I was called "father" or "daddy" I could see there could be confusion. This is not the case. I know L as well as any relation. To her I am just another person who comes and plays with her for a day.'

He went on to say:

'It is an advantage for me to come once a month to keep the contact there. I accept that any visits to the home would be upsetting and distressing. She (that is, the child) is continuing a normal life with the extra thing of my visits.'

It appears to me that the justices, in sub-paras (c), (d) and (e) of para.6 of their reasons, did not accurately appreciate the particular matters which they were there dealing with, for they said, in (c), that the fact that the natural father had not lived with the child was not relevant as the child was of tender age. I would say, as to that, that it plainly was relevant because the child had never lived in a setting where the father was present as her father. They said, in (d), that it was unlikely that access would have a disruptive or destabilising effect on the child or the family unit, by virtue of the maturity of all parties and the affection to the child expressed by all parties. Again, I find that a strange conclusion in the light of the evidence to which I have just referred and in the light of an objective view of the situation, where this child had no knowledge or feeling that the father was her father and was not to be allowed so to feel in the immediate or foreseeable future; moreover, the bonding was entirely with her mother and with her stepfather whom she called 'daddy'. It would fly in the face of those facts to say that it is unlikely that access would have a disruptive or destabilising effect on the child or the family unit. In (e), the justices said that it was unlikely that there would be confusion to the child as the natural father was content to be known as an uncle or friend until such time as the child was made aware of who her natural father was. I find that a very strange reason to give. It seems to indicate that the justices took the view that the subterfuge (for that is what it was) which was being practised upon this child could in fact have some helpful effect. In my judgment it would lead to increasing confusion as time went on.  

Accordingly, I have come to the conclusion that the magistrates applied what has been described as the ‘theoretical general principle of access being maintained between a child and his or her natural parent', and did not pay sufficient attention to the particular facts of this case. I am bound to say that I believe that in this case the welfare officer also appears to have overlooked them and did not sufficiently consider the practical consequences. It was accepted that access could not sensibly take place in the matrimonial home of Mr and Mrs B, particularly having regard to what had happened in the past when their marriage had broken up because of the presence of the putative father. The welfare officer, together with the justices, did not pay sufficient attention, in my judgment, to the fact that there was no bond between the putative father and the child, and that the bond is entirely with the mother and with the stepfather. It seems to me to be inescapable that if Mr A were to be regularly introduced into this family setting there would be likely to be confusion in the mind of the child and, unfortunately, a risk of destabilising the family unit. 

I believe that it would be wrong to run those risks, and I do not believe that the magistrates correctly carried out the balancing exercise in this particular case. Accordingly, I shall allow this appeal and order that access should cease, just as Heilbron J ordered in the case of Re W7 (A Minor) (Access), to which I have referred. Solicitors: The names of instructing solicitors are omitted in the interest of preserving anonymity for the parties.

PATRICIA HOLLINGS
Barrister