This is a guest post by Laura Vickers. Laura is a specialist children law barrister and mediator practising at No5 Barristers’ Chambers. She tweets as @LauraVickersNo5
When the social services department of a local authority believes that a child is likely to suffer significant harm, it may begin court proceedings and ask a Judge to grant protective orders; for example, a care order, which may mean that the child is placed into foster care. When the local authority makes the application, it needs to serve this on every person who has parental responsibility for the child. This will always be the child’s mother, sometimes the father, and sometimes another person if they have obtained parental responsibility under a court order.
Fathers do not automatically have parental responsibility for their children. If they are married to the mother, or if they are named on the birth certificate, they will acquire it; however, if they are unmarried or are not named on the birth certificate, they will not legally share the same rights and responsibilities as the mother. This does not mean that they cannot have a relationship with the child, but there are some ways in which the law will treat them differently as parents.
One such way is when a local authority makes an application for a care order. While everyone with parental responsibility will be served with the application and will automatically become respondents to the case – which means they get to see all of the evidence and have their say at court hearings – fathers who do not have parental responsibility are only provided with “notice” of the proceedings. Essentially, this means that they are given a form which tells them that court proceedings are going to take place. Very often, the father will already know all about the case as he might have been involved with the social worker for a long time, or he may still be in a relationship with the child’s mother. When he is given formal notice, normally he will ask to become a respondent in the case – which will almost certainly be allowed by the Judge – and he will then receive all the evidence and have his say in court alongside everybody else.
However, there can be occasions when a father without parental responsibility may not have been involved in the child’s life for some time and may not be aware that social services have become concerned. Sometimes, the father may not even know that he has a child at all. The court normally still considers it very important to notify him about the court proceedings because he may be able to care for the child, or, if not, he may have another family member who could. The child has a right to be brought up in their biological family wherever possible, so these avenues need to be explored, even if there is no existing relationship with the father.
There have been a number of cases in which the Judge was asked to dispense with the usual requirement to provide notice to a father without parental responsibility because it was thought he might pose a serious risk to the mother or the child if he were to find out about the proceedings. See the Transparency Project here on that and campaign calls for more and better use of applications to dispense with usual service.
In the recent case of Re B (Children) [2021] EWCA Civ 1221, the Court of Appeal considered an appeal by a mother from a first instance decision of HHJ Wood to refuse to dispense with the notice requirement.
The child was nearly three and had already been placed in foster care. The mother did not want the father to be notified of the proceedings, alleging that the child had been conceived as a result of rape, and that the father had sexually abused her throughout their relationship. He was married to another woman, and when he became aware that the mother was pregnant, demanded that she have a termination. He was said to have threatened to kill the child and made threats by text message towards the mother. They separated while she was still pregnant and he had nothing to do with her since.
The Judge accepted that he must take the mother’s evidence at face value and therefore worked on the basis that the father had perpetrated serious abuse. However, he decided he had to balance this against the fact that the father had done nothing to carry out his threats or to seek out the mother since they had separated. He considered it important that the child ought to know the truth of her paternity and, as she was of dual ethnicity, to know her racial heritage too. The Judge refused the application to dispense with the notice requirement, finding that the case was not exceptional and that any risks could be managed appropriately.
The mother appealed. It was argued on her behalf that the Judge had been wrong to have applied a test of “higher exceptionality” in a case where the father – without parental responsibility and who had no prior relationship with the child – had not acquired any rights to a family life under Article 8 of the ECHR. It was argued that the test was instead simply one of “exceptionality”.
Macur LJ, delivering the lead judgment, determined that there was no additional gloss or stricter test to be placed on the concept of “exceptionality” and that exceptionality was not itself a test or a short cut. She reviewed the case law and reiterated that every case should be determined in the light of its own particular circumstances, with a balance to be struck between the competing rights and risks involved. She said the following at paragraph 20:
“The balancing exercise will inevitably reveal that some features are heavily weighted against dispensation of service, for example in the case of a parent with parental responsibility who has established strong family ties with the subject child. But this will not be determinative, for there could be a feature, or accumulation of features, of greater weight to dislodge what should be the default position in all cases where party status would otherwise be assured or a form C6A served. These features may not necessarily relate to physical or psychological harm, and as the authorities make clear the list of factors is non exhaustive. Different combinations of factors will apply in every case. Different weighting will be merited by the circumstances. It will not be sensible to attempt a comparison of the seriousness of harm by extraction from other cases save in the most general of senses. That which appears objectively minor in comparison to other cases of harm may have greater impact because of other features in the case.”
Macur LJ then went on to endorse the comments of HHJ Bellamy in the case of Re X (A Child) (Care Proceedings: Notice to Father without Parental Responsibility) [2017] 4 WLR 110:
“Each year local authorities issue care proceedings in the Family Court in which the fathers of the children concerned do not have parental responsibility and who, though not parties, are nonetheless entitled to receive a copy of Form C6A. Until they receive Form C6A some fathers are in a state of ignorance about the existence of their child. Others are aware of the existence of the child and of the fact that they are the child’s biological father but have thus far shown no interest in the child’s life. For the children involved it is important that attempts are made to engage with their birth father and perhaps also his wider family. The starting point must be two-fold. First, that it will normally be in the interests of the child that her birth father should receive a copy of Form C6A thereby enabling him to apply for party status so that he can participate in the proceedings. Second, that the child and her mother should not be put at risk of harm as a result of seeking to engage the father in the proceedings. It is a matter of balance and that is the case whether or not the father is entitled to the protection of Article 8 and Article 6.”
The Court of Appeal found that HHJ Wood had not misapplied the law and had exercised his discretion appropriately. They refused the appeal and made suggestions as to how they thought the father could be safely and discretely informed about the court proceedings here.
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