This is a post by Sarah Phillimore
I was recently asked to write a summary of a case called LA v XYZ (Restriction on Father’s Role in Proceedings) [2019] EWHC 2166 (Fam) (18 February 2019). I thought this was a useful case to discuss the legal framework about how you can stop a parent being involved in care proceedings.
This issue was subject to wide public discussion in November 2018 when Sammy Woodhouse asserted that her child’s father (in prison at the time of the application by the local authority for a care order) had been ‘offered contact’ with their son in care proceedings. A number of politicians took this up and there was manufactured outrage about this so called ‘rapist’s charter.’ The reality – as ever – was more complicated than that. The child’s father retains a right to know about care proceedings unless application is made to the court to expressly disallow this.
I think this is a useful illustration of why its so difficult to present issues around the family courts in a way that reflects reality. Deciding whether or not to allow adults to continue to have a role in a child’s life requires careful analysis about competing ECHR rights. There is no ‘rapists charter’, there is no demand that violent men have contact at ‘any price’ – but you would not know this from the various ‘campaigns’ now on going which seek to change a law that doesn’t actually exist.
So how is it that we can’t just ignore the existence of fathers who are violent or abusive? And if we do want to restrict their access or remove them entirely from care cases, what are the requirements we have to fulfil to make this lawful?
Restricting parent’s access/participation in proceedings
The case of LA v XYZ (Restriction on Father’s Role in Proceedings) [2019] EWHC 2166 (Fam) (18 February 2019). case involved the child Z, who was in the home when her mother was murdered by her father. He was convicted and sentenced to life imprisonment, to serve a minimum term of 22 years.
The Local Authority applied for a care order and did not want the father to be a party to those proceedings. The LA didn’t want the father to have any contact with Z and made an application under section 34(4) of the Children Act 1989 to stop this.
Finally, the LA asked to be released from its statutory duty under section 22 CA 1989 to consult the father about or give him notice of any future decisions relating to Z. This would mean the court needed to use its ‘inherent jurisdiction’.
The Guardian supported the LA position and reported that Z had said she wanted no further indirect or direct contact with her father and did not want him to know anything about her.
The father argued that he did not wish to cause harm to Z, but simply wanted to participate in proceedings. He could not interfere in his daughter’s life as he did not know where and with whom she now lived. He would accept continued redaction of documents to maintain that position.
The court decided to grant the LA’s applications. It is clear that such orders are ‘exceptional’ but in this case were necessary; having conducted an analysis of the various considerations the court was clear that Y’s continued involvement in these proceedings was ‘deeply harmful to Z.’
It is important to consider such issues as early as possible. If such an exceptional application is made, it should set out the terms of order sought and evidence must then be provided to set out the evidential foundation for why such an order is necessary.
It is expected that such cases will be allocated to a judge of circuit judge or High Court level – not allocated to a judge of district judge level unless specifically released by the Designated Family Judge or nominated deputy.
Application to prevent a parent even knowing about care proceedings
Part 12 Family Procedure Rules [FPR] 2010 sets out who should be an automatic party to proceedings and who should be given notice of any application.
A father with parental responsibility is an automatic respondent to care proceedings while Practice Direction 12A sets out that the LA should inform fathers who do not have parental responsibility about the application for a care order.
If a father does not have parental responsibility, the application is made under r.12.3(3)(a) FPR 2010, which provides that the court ‘may at any time direct that any person or body be made a party to proceedings.’
See S (a Child) [2023] which sets out the guiding principles in such cases.
If someone is a party to proceedings, they should get copies of all the paperwork and be invited to attend court hearings.
It’s clear that the circumstances have to be ‘exceptional’ to justify not telling a father about the proceedings at all – see further, Re AB (Care Proceedings: Service on Husband Ignorant of Child’s existence) [2003] EWCA Civ 1842. Exclusion of a parent could only be exercised in “highly exceptional circumstances” and M v F [2011] EWCA Civ 273 – “A very high degree of exceptionality is required.”
In A Local Authority v B (Dispensing with Service) [2020] EWHC 2741 (Fam), a 17 year old child did not want his father involved in the proceedings as this would cause serious mental distress to the child. The court held that under FPR 2010 rule 6.36 the court has power to dispense with service on a parent of proceedings for an order under the inherent jurisdiction notwithstanding the requirement for service in rule 12.8(1). The court set out the following principles to apply when considering whether or not to serve a parent with notice of proceedings
i) The starting point is that a father should be able to participate (in a wide sense) 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.
ii) The court’s task is to identify the nature and extent of the harm in contemplation. The court should be rigorous in its examination of the risk and gravity of the feared harm.
iii) There is no requirement that a significant physical risk be demonstrated. Harm and risk comes in many guises.
iv) When evaluating the risk of future harm, there is no minimum requirement. The court must be alert both to the risk and to the magnitude of the consequences should the risk eventuate, and must also consider whether and to what extent that risk can be managed by the court’s control of its own processes. The greater the harm the smaller need be the risk.
v) The court is not determining a question with respect to the upbringing of the child so the welfare of the child, whilst an important consideration, is not paramount.
vi) Authorities in the Strasbourg jurisprudence put a high bar on excluding a parent with parental responsibility. In this context, where a parent has parental responsibility or a right to respect for family life under Art 8, a high degree of exceptionality must be demonstrated by strong countervailing factors to justify their exclusion from participation in the proceedings.
vii) It must be remembered that exceptionality is not, in itself, a test or a short cut and a fair balance must be struck between the factors that are present in the individual case.
See further the discussion in CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34
Stopping a party getting access to certain papers
The court has case management powers under rule 4.1 and 12.2 FPR 2010 to restrict a party’s access to material filed within proceedings. But this is an ‘exceptional’ course of action.
As the former President of the Family Division Sir James Munby commented in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017. such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny.
In LA v XYZ (Restriction on Father’s Role in Proceedings) [2019] EWHC 2166 (Fam), the LA required permission to make the application to keep information from the father, and needed to satisfy the requirements of section 100(4) CA 1989.
The court was satisfied the relevant grounds were made out; the declaration sought can only be made under the inherent jurisdiction, and the welfare of Z was clearly engaged. It is clearly a serious matter to permit the LA to be released from its duty to inform and consult with parents pursuant to section 22 CA 1989.
With regard to exercise of the inherent jurisdiction, the court referred to the ‘extremely helpful analysis’ by Knowles J in Re X and Y (Children) [2018].
Hayden J stated in Re O (A Child) [2015] EWCA Civ 1169 (paragraph 27)
The objective of the process here is to ensure not only that there is proper planning but the plan for the child continues to be the correct one, developing and evolving as the child’s needs change. It is to fortify the rigour of review that the section imposes a wide-ranging duty to consult, not least with the parents. Even a parent who has behaved egregiously may nonetheless have some important contribution to make in the future. The requirement to solicit the views of a parent is not contingent upon a moral judgment of parental behaviour; it is there to promote the paramount objective of the statue as a whole, i.e. the welfare of the child. These duties are a statutory recognition of the need appropriately to fetter the corporate parent.
Of particular relevance in this case was the evidence that the father had continually attempted to breach an order of 2015 which set out the limited parameters of his involvement in Z’s life. In January 2018 it was suggested that the father’s associates tried to force their way into Z’s new address, causing her significant distress. The court commented on the father’s inability in any of his written documents to recognise or understand the impact of this on Z.
The court therefore accepted the submissions of the LA – Article 6 would, all other matters being equal, favour disclosure to the father of information about Z, but when looking at the competing rights, in particular the Article 8 rights in relation to Z, there was ‘weighty justification’ for compromise of the father’s rights.
Further reading
See discussion of S (A Child) [2023] EWCA Civ 706 here https://www.pinktape.co.uk/rants/beyond-belief/
“Neither the local authority nor the children’s guardian oppose the appeal. They each accept that the appeal must be allowed on each of the three grounds on the basis that the judge fell into error in: (a) holding that the father had to demonstrate an arguable case; (b) reversing the burden of proof by holding that it was for the father to justify joinder; (c) holding that the father had not established an Article 8 right to family life and accordingly had no Article 6 rights to a fair trial; and (d) failing to consider whether the impact of joining the father could be sufficiently ameliorated by making a case management decision of the type identified in paras. [15-19] above”