With the very nature and fluidity of Family Law, many attempts at definitive meanings are met with a high degree of confusion even by the most learned minds.

“In my opinion a father who inflicts violence on the mother of his child makes it highly likely, as well as understandable, that the mother would regard him as unsuitable to share parental responsibility and would be worried about the continuance of access. This will particularly be so where, as here, the history of violence is accompanied by no apparent remorse and by an evident continuing dislike of the mother.” So the denial of PR is merely associated with the lack of understanding to the child’s welfare. Historically A has lived with B for about eleven chequered years, and since their split he has counseled himself, contributed financially and sustained regular visits in company with the children’s grandmother Frances. As Herring outlines about a father like A who has shown “sufficient commitment [to his children] then a parental responsibility order will be made unless there are serious concerns that he may harm the child.” It is interesting to note the new position concerning PR and the unmarried father under the Adoption and Children Act 2002. An unmarried father who is the natural father of the child can also acquire PR if they are named on the as the father on the child’s birth certificate in a joint registration with the mother. In effect this would constitute an agreement between them. This may not assist A, as the name must have been registered after this section of the act came into force. It is not retrospective. However this may well assist Callum in relation to Grant, and the issue of paternity from A’s perspective will be examined now.

Pater est quem nuptiae demonstrant is a wonderful expression which qualifies the rebuttable presumption that the mother’s husband is her child’s father. If the parents are married then any child born is presumed to be of that couple. Cretney outlines “at common law the presumption could only be rebutted where evidence put the matter beyond reasonable doubt [the criminal standard]; now the matter is determined on the balance of probabilities using scientific tests which clearly establish parentage.” However away from this and in the days when we were not too technologically advanced, a husband may be presumed to be the father of his wife’s child, but in fact not be the generic father. Herring quotes journalistic figures that in 1996 there were 30% of husbands who were unaware that they were not the fathers of their wife’s children. All very interesting, and I mention it purely as an introductory measure, as so far there is nothing to assist A in establishing the truth of G’s paternity, even though there may be more than a slight resemblance in appearance.

DNA profiling can establish parentage with virtual certainty, but even so there has to be a careful decision making process adopted in deciding when tests should be ordered.  It would seem that the courts are have to consider two established, yet countervailing arguments regarding the welfare and rights of children and adults. Case law is pulled on the one side to establishing the child’s right to know their genetic origins, and towards the other side in obtaining this knowledge and disrupting the family unit and damaging the child in that way. Indeed the welfare principle is not the

paramount consideration in these instances. The child’s upbringing is not in question and consequently s.1 CA 1989 need not be applied. However as I have pointed out from the relevant case law, welfare concerns are always of issue. In Re H the tests were ordered because it was decided the child had a right to know the truth and he would find out sooner or later. Cretney sites O v L as a contrasting example of where a child was conceived following an extra-marital affair, and the courts viewed that knowledge at this juncture would “undermine the child’s beneficial relationship with the husband.” The pendulum has now swung back; with Re H and A where upon appeal LJ Thorpe stated “the [original] judge had therefore erred in his approach and had given insufficient weight to the importance of certainty.”  This could be argued with reference to G, as his older siblings and his own advancing curiosity may pursue his quest for the truth. The relevant authority for the test to be applied, stems form the House of Lords decision in S (An Infant) v S, “the court should allow a blood test to be taken in order to help establish paternity, unless it is satisfied that such a course would be actively against the interests of the child.” Alistair would have a stronger case for ordering a blood test in circumstances similar to above, and affirming old common law ideals that if Grant “bore racial characteristics inconsistent with those of [his] parents.”

The fact that Belle has PR for Grant means that she could arrange for his genetic parentage to be tested. However we are told that she refuses even to consider the possibility, and although the Family Law Reform Act 1969 allows the court to direct “biological [testing],but cannot force parties to take blood tests.” It seems clear that the courts prefer the consent of a person who has care and control of a child under 16 years, before a sample is given, but Cretney does throw in rather supplementary that a sample can be obtained “if the courts think it is in the best interests of the child.” In thinking that the courts invariably encourage the right of the child to see both parents wherever possible, and the child’s right to know the truth, there is a good chance that the courts will allow a s.20 direction in favour of A, how will this affect B?

Section 23(1) FLRA instructs us quite explicitly that adverse inferences will be drawn on persons who fail to take a biological test. LJ Ward stated in Re G (Parentage:

Blood Sample) “that the court had a duty to determine what inference should be drawn from the refusal to submit to a direction for a blood test. A forensic inference was the proper inference. [She] who obstructs the truth will have the inference drawn against [her].” The same would apply to Callum’s protestations with or without his PR.

A contact order has specific requirements and it can be granted for a number of reasons. For instance, where a satisfactory agreement cannot be reached, say between A, B, and F, or indeed any other person who has an interest in making contact, then an order may be granted. The order requires “the person with whom the child lives or is to live to allow the child to visit or stay with the person named in the order or for that person and the child otherwise to have contact with each other.” As Cretney identifies other reasons include, where “the carer is restricting or preventing contact, or where the child’s welfare demands the control or termination of contact.” This is a very difficult area and the case law certainly reflects that the enforcement of contact orders has many considerations and varieties. In Re Ofor instance and similarly to B, the mother was adamant that there would be no form of contact. However Sir Thomas Bingham MR directed some indirect contact and reaffirmed the generally accepted attitude of the courts, that maintaining contact with the non-residential parent is almost certainly in a child’s interests. Sir Bingham adds “that judges should be very reluctant to allow the implacable hostility of one parent to deter them from making a contact order where they believe the child’s welfare requires it.” The length of time A and F have not seen the children would seem to be irrelevant. I have discussed A’s commitment issues previously, yet it would seem that even if the father lost contact with the child at a very young age, and a surrogate father figure had replaced him in the eyes of the child to such an extent, that the biological father is unknown in the child’s eyes and several years have rolled by, even at this the courts have granted contact. As Herring outlines in Re K, even if direct contact is not appropriate, the court will make an order for indirect contact in all but except exceptional cases.”

The position of F is that she must first apply for leave before seeking a contact order. There would appear to be certainly a healthy historical relationship between F and D and E, but Re A informs us that there is no presumption in favour of contact by grandparents who have obtained leave. There is also no welfare test to apply when

considering the application from a grandparent, although as Cretney states the court “must consider the criteria in the Act.” As F does not possess the favourable backing of the courts in issues of contact like her son does, for her to be successful she must persuade the court that she has a close relationship with the children and contact would be beneficial for them. As stated the historical association and attitude of D and E can only serve to enhance her application. As far as G is concerned, the issue may rest on the paternity result, as there has previously been a remoteness and lack of association.

To enable us to consider the contact picture fully, we must also closely examine B’s adamant, if not justified, then understandable opposition to this s.8 contact order. As Cretney observes, “increasing concern has been expressed about the court’s failure to take account of the impact violence against the parent with care could have on children.” Clearly A’s violent past against B must have had some adverse affect upon his children, and although we have been informed of A’s recent rehabilitation and counseling, this would seem as a result of “terrifying” his children. On the 19th June 2000 the Court of Appeal decided to hear four cases together to specifically address the problems posed by this area of law. The court upheld decisions which refused direct contact to all four of these fathers who had attacked the children’ mothers; yet it was strongly emphasised that the mere fact that there had been domestic violence is not a bar to contact. The President Dame Elizabeth Butler-Sloss went on to state, “the court had to balance the seriousness of violence and risks to the child against any positive factors in favour of contact.” Subsequently this seems to be the following trend in case law. In Re J-S (A Child) the judge had a strongly negative view of the father which clouded his opinion to the extent that he gave too much weight to the allegations made by others, (Social Services) and ignored the child’s good relationship with the father and the need for him in his life. And even in M v A where it was decided that direct contact by the father would adversely affect his three-year-old son and would be likely to affect the emotional stability of his home and prejudice future contact, indirect contact was ordered for six-months, after which direct contact would be considered again. As can be observed by relevant case law there are many considerations which a court needs to adopt in the complex area, and there is a definite slant in favour of contact for Alistair, whether he has mended his violent ways or at least appears to be trying. Dame Butler-Sloss again states, “the ability of [Alistair] to recognise his past conduct, to be aware of the need for change and to make genuine efforts to do so, will be likely to be an important consideration.” 

It would seem that Callum’s views as stepfather can hold some credence in any future court proceedings. His views may be accepted, and relating specifically to the

‘emotional stability’ of the home, if he can reasonably show that the contact with Alistair would destabilise the relationship between him and Belle, then the courts may listen. A has threatened C, and we know of B’s ambivalence towards A, but it is doubtful on the facts alone, with Eva calling him ‘daddy’ and the paternity of Grant that any threat to leave B would be found to be sincere in the circumstances.

As we have observed the ‘welfare principle’ in essence has been meandering through the case law like the big river it is. So it is hardly surprising that in relation to contact by the non-residential parent, the views and opinions of the child or children carry a great deal of weight in the eyes of the court. Obviously, account is taken to the child’s age, reasons and the seriousness of the issue being considered. In the case of Dean’s maturity, he may take the view to see his father anyway irrespective of any court order prohibiting contact by A. Consequently the courts appreciate that there is little point to making such orders. As far as E is concerned, the courts are not; unduly perturbed that is for causing distress. Again the courts look to the future and the long-term benefits for E. In Sommerfeld v Germany it was not justified for the court to force a young girl to see her father when she was quite adamant she did not wish to. However the case considered other issues under articles 8 and 14 of the European Convention of Human Rights, the right to respect for family and private life. The crux being that it placed fathers of children born out of wedlock in a weaker legal position as their right to access was dependent on a favourable decision by the mother, whereas fathers of children born in wedlock had a legal right to access that could only be suspended or restricted by the court if it was in the child’s best interest.  In relation to these issues and especially under article 8, Herring summarises that it “would suggest that the burden is on the party seeking to deny contact between a parent and child, at least where there is a strong relationship between child and parent.” 

From all this I would suggest that the law in relation to contact seems adequate enough to deal with the constant challenges it encounters. From a handful of basic considerations and maxims, as long as the processes reflect the changing times in society, then there is no need for any drastic reform. On these circumstances it would appear that A would more than likely be granted a contact order in his favour, albeit it may be indirect. This decision would no doubt have bearing upon F’s application, and although could be considered independently suitable advice as to the timings of separate applications or the more appropriate joint application should be given.

Cretney informs us that, “Adoption is the legal process whereby a court irrevocably extinguishes the legal ties between a child and the natural parents or guardian and creates analogous ties between the child and adopters.” For Callum his relationship with all three children can be legally formalised using adoption legislation. Being essentially a creature of stature, adoption was essentially introduced by the Adoption of Children Act 1926, passing through to the Adoption Act 1976, and resulting in the present Adoption and Children Act 2002.

Prior to the current legislation, the 1926 Act permitted adoption without parental consent. Now the consent of both PR parents is required. Considering the effects if A gets PR as previously discussed, it is highly unlikely consent will be granted. Only adoption (or an order freeing a child for adoption) ends a mother’s or married father’s PR. It would also end A’s should he have been granted it. Under the new legislation it allows C to adopt the children without changing the status of B. The couple will then both have PR for the children. Again the consideration of the court in relation to adoption and specifically the welfare of the child has shifted in emphasis. Previously there was only a limited requirement for “a need to safeguard and promote welfare throughout childhood,” and as stated did not apply a simple welfare test to see if the child could be adopted without parental consent. Presently there are those paramount welfare considerations, which concern a child’s welfare throughout life. It may well be in C’s interest to actually marry B if he is indeed keen to formalise legally his relationship with the children. Current legislation now makes provision for married step-parents to share PR by either an agreement with both natural parents or more significantly under a court order. However the court strongly adhere to the welfare principle once again and would no doubt carefully consider the effect on A, whether he had PR or not.

There are more than one way of securing legal permanence for C in the children’s lives other than adoption, and special guardianship or residence may be more appropriate in some circumstances, but not in relation to Callum. Both B and C are striving for a stable family unit, where C will achieve legal responsibility.

Adoption end’s the child’s legal relationship with A, and enables full integration into the new family with lifelong effect.

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