Parental capability: Applying s.1(3)(f) Children Act 1989
Harrison Engler reports on a recent case invoking an unusual application of s.1(3)(f) Children Act proceedings.
I recently acted for the mother in Children Act proceedings concerning the two youngest of her five children. The mother and children all had additional needs, including a genetic learning disability. The mother had also made allegations of abuse against the children’s father.
Background to the applications
The mother had been in an on-off relationship with the children’s father from 2003 to October 2022.
Proceedings had been ongoing since July 2023, when the mother applied for a prohibited steps order and child arrangements orders.
(The local authority had been involved with the family due to their additional needs).
The mother's allegations of abuse against the father included that he had:
- threatened to kill her with a knife whilst the children were present
- thrown a brick and bottle of beer at her house
- requested money from her and threatened her with a knife when she refused
- said he would “come back to finish the job” and “sacrifice” her after threatening her.
Proceedings
I represented the mother in a 3-day fact finding and welfare hearing relating to her allegations and the contact arrangements for the two youngest children.
At the hearing, all the mother’s allegations were proven. A local authority social worker, who had written a section 7 report, gave evidence which included the mother’s positive efforts to address past issues. The social worker recommended direct, supervised contact between the youngest child and the father.
The mother’s witness statement supported the child having indirect contact with the father, but at the outset of the hearing she explained that she could neither read nor write and that this part of her statement was incorrect. The mother instead sought no order for any contact with the father, even indirect.
Court’s decision
The mother described the father during cross-examination as a ‘distraction from her responsibilities as a mother’. I argued on her behalf that:
- while this attitude towards another parent could be criticised in other proceedings, with this particular mother, bearing in mind her vulnerability, it was an indication of broader welfare principles;
- the challenges the mother had faced and her reduced caring capability pursuant to section 1(3)(f) of the Children Act 1989, due to her vulnerabilities and lack of support network in this case, were a reason in favour of no contact with the father.
Following my submissions, HHJ Reardon found the mother to be a credible witness. The court found all the mother’s allegations proved including that the father had said that “disability was a curse” and the children had “inherited [her] stupidity”.
The court:
- noted that the mother needed support as she did not read or write and had had a traumatic childhood and no support around her
- agreed with my submissions and held that in the circumstances it was “crucial that her parenting is not undermined” by the father’s aggressive behaviour
- made a child arrangements order in the mother’s favour and directed no contact between the children and the father
- made an order restricting the father’s exercise of parental responsibility
- made a prohibited steps order in the mother’s favour and, following an oral application, a non-molestation order against the father.
Section 1(3)(f) of the Children Act 1989
This decision was an unusual application of section 1(3)(f) of the Children Act 1989, because the court considered that the mother’s limited capability under that section was a reason to agree with her application that there should be no contact with the father.
By ordering no contact with him, the court thereby departed from the social worker’s recommendations.
The judge noted that the section 7 report had “not given enough weight to risks arising out of domestic abuse in this case”.
Harrison Engler is a barrister at Field Court Chambers.
