Father Refused Permission to Join Care Proceedings
These care proceedings came before HHJ Middleton-Roy in November 2020. They concern a boy K (9 months old) who is presently living with his mother aged 17 in a specialist foster placement. David O’Brien of Trinity Chambers, acting on behalf of the Mother (“M”), successfully resisted an application by the Father (“F”) to be joined as a party to the care proceedings involving his son, K. The application by F was opposed by the Children’s Guardian, the applicant local authority (“LA”) being neutral.
Background
It was accepted by all that M was a vulnerable young person. M claimed that K was conceived as a result of rape perpetrated by F. In any event, M was 15 and F was 19 at the time and therefore M could not have legally consented. F denied raping M and asserted that M lied about her age and identity. M also alleged that she was subjected to physical domestic violence by F whilst she was pregnant. M believed F to have an extensive criminal record.
F was arrested and questioned by police before being released on bail. During the investigation, F’s paternity of K was confirmed by way of DNA test. The parties were subsequently made aware that no criminal charges were going to be brought against F.
Care proceedings were brought by the LA and F received notice of the proceedings pursuant to Family Procedure Rules 2010 (“FPR”) Practice Direction 12C. However, he did not have an automatic prima facie right to be joined as a party to the proceedings because, without parental responsibility (“PR”), he did not fall within the scope of FPR, rule 12.3. F therefore made a formal application to be joined to the proceedings.
The application
At a contested hearing, counsel for F argued that he should be allowed to participate in the care proceedings involving his son. Although it was conceded that no family ties existed between F and K, it was asserted that this was due to M denying F the opportunity to be involved in K’s life. It was submitted that for the court to make the correct decision in K’s best interest, it needed all the facts and information before it which would include input from F, who put himself forward as a potential carer for K alongside his mother (the paternal grandmother).
Mr O’Brien on behalf of M asserted that it would cause significant harm to M if F were allowed to participate as a party to the proceedings. Counsel argued that, given the history between M and F, this could undermine the current foster placement of M and K. Furthermore, the case authority indicated that F could not rely on Article 6 and 8 ECHR protection where he did not have PR or no family ties existed, and the latter required more than “mere biological kinship”. It was also submitted that even if F was excluded as a party, this would not prevent the LA from undertaking the relevant viability assessments.
The judgment
The judge relied primarily on the decisions in:
A Local Authority v B (Dispensing with Service) [2020] EWHC 2741 (Fam) (19 October 2020).
In A v B, MacDonald J held that the starting point is that a father should be able to participate in proceedings concerning his child. The court should start with full participation then consider partial participation and then, only as a device of last resort, the father’s exclusion from the proceedings. The court’s task is to identify the nature and extent of the harm in contemplation but there is no requirement that a significant physical risk be demonstrated. Authorities in the Strasbourg ECHR jurisprudence also put a high bar on excluding a parent with parental responsibility.
The court accepted that there had been no findings in relation to the allegations of rape or domestic violence. There was little by way of disclosure from the police. This notwithstanding, the court in this case was satisfied that F’s involvement did pose a risk of harm to M, and that M’s current placement could be “destabilized” due to her vulnerability. F did not have PR nor did he have a family life with K for the purposes of Article 8 ECHR. F therefore had no protection under Article 6 ECHR. Nevertheless, the judge felt that a balance had to be struck with a high degree of justification. The judge also expressed concern that safeguarding measures would not be appropriate or effective in the circumstances.
The judge was content that, at this point in time, the balance was tipped in favour of F being excluded from the proceedings. He did, however, direct that it be stated on the face of the order that:
- the LA undertake the necessary viability assessments of both F and his mother; and
- the issue of F’s participation could be reconsidered by the court at a future date, if necessary.
As per the dictum of Hedley J in Local Authority v M & M & Ors (Rev 1) [2009] EWHC 3172 (Fam) (07 December 2009), it followed that this decision will have to be kept under review and it should be the responsibility principally of the solicitor for the child to restore this matter should circumstances change.
James F. Hankinson
Trinity Chambers
25.11.2020
