A father without parental responsibility who has been charged with two counts of rape – and amid an allegation his son was conceived of rape – has won an appeal to be made party to care proceedings concerning the boy.
The man, who is also the paternal uncle of the child’s mother, brought the appeal against a decision made by her honour Judge Wright to refuse his application to be joined in proceedings relating to the 11-year-old.
The mother conceived the child referred to as “S” when she was 17 years old and living with the father – her uncle – who had assumed a parental role following the death of her own father.
In a court of appeal judgment Lady Justice King wrote that “S”, who is described as having “physical, emotional and neurodevelopmental issues”, had been born “as a consequence of a consanguineous relationship” between his biological parents.
In December 2019, after eight years of them living together, the mother left and moved to a different part of the country before making allegations of rape against the father to the police, including an allegation that “S” was conceived after rape.
The father, who “S” believes is his uncle, has now been charged with two counts of rape and one of sexual assault. He is not named on the boy’s birth certificate and does not have parental responsibility for him.
But even without parental responsibility, the father is treated under legislation as a legal parent and is entitled to apply for any orders in respect of his child.
Now three court of appeal judges – Lady Justice Asplin, Lord Justice Baker and King – have joined him as a party in the care proceedings after granting the appeal. They found Wright had applied the wrong test and therefore fell into error in finding there was a justifiable reason for dismissing the application.
Following concerns unrelated to the father, “S” was made the subject of a child protection plan under the category of neglect before the local authority later issued care proceedings in October 2022.
The father then made an application to be joined as a party which was opposed by the local authority, the mother and the Children’s Guardian – and dismissed by Wright.
Before refusing the father’s application the court must find there is a justifiable reason not to join him, rather than he must show a justifiable reason to be joined.
Wright said she had considered the father’s application to a fair trial but concluded he had “no family life” with “S” and that the mother considered him to pose a risk.
She had said: “It is justifiable, given the concerns that have been raised both on behalf of [“S”] but also on behalf of the mother and the local authority that [the father] should not be joined to these proceedings.”
The father was granted permission to appeal on the grounds the judge had applied the incorrect test, had failed to have proper regard to his Article 8 rights and had failed to consider the proportionality of excluding him. The appeal was allowed on all three grounds.
King said she had no doubt Wright was focused on the “extremely vulnerable young woman” being supported so as to enable her to give her best evidence [in the care proceedings], but she added: “The judge’s decision appeared to be coloured by the nature of the relationship between the father and the mother.”
Responding to the outcome, London’s victims’ commissioner Claire Waxman said: “This judgment is truly appalling and is a shocking example of how the family court works in conflict with the criminal court.
“It is beyond belief that a father who does not have parental responsibility and has been charged with two counts of rape, with concern that the child is born of rape, has the legal right to be party to care proceedings.”
Waxman, who recently visited Quebec in Canada, said she was struck by new reforms being made there. “Their recently introduced legislation protects mothers whose children are born of rape, and denies parental rights to rapists,” she said.
“Our government’s victims and prisoners bill is making its way through parliament, and I strongly urge it to adopt this approach and use this legislative opportunity to better protect victims and their children from abusers in the family court.”
In January the government announced that children born as a result of rape would be officially recognised as victims through the victims and prisoners bill.
