When will violent men be prevented from taking part in care proceedings?

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 child’s father 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?

This case involves 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 may be necessary to re-allocate the case to the High Court.

General legal framework

The court considered the general legal framework if you want to stop a party to proceedings seeing some or all of the documents – or if you want to stop someone being a party at all.

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. See further the discussion in CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34

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.

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].

The LA required permission to make the application 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.

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.

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