Since the Sammy Woodhouse story first hit the news on Tuesday, the shape of the campaign she has launched for a change in the law relating to the rights of rapist fathers has gone through a number of changes. However, one early call was for guidance on the circumstances in which a local authority (or another party) should ask the court to suspend the rule that would otherwise require it to serve notice of care proceedings on a father who did not have parental responsibility.

MP Louise Haigh was reported on Wednesday to have said that “black and white” guidance could be issued “by the end of the day” (We’ve included a screenshot of the google search as the BBC piece has edited this out since we first saw it, but the google search still shows the old quote). Although we’ve missed that somewhat optimistic deadline, we are happy to try and help here, although this post is a first attempt at drawing together what the law IS in this area – not an attempt to say what it ought to be. [UPDATE : we’ve added a short section about additional duties placed on social services where a child is looked after by them].

This blog post does NOT deal with other, wider calls for law reform that have been made by various individuals as part of (or off the back of) this campaign – such as the restriction or termination of parental responsibility and rights to apply for orders such as contact or parental responsibility.

We’ve intended this blog post to be mainly a useful point of reference for lawyers, but we’ve tried to make it reasonably accessible for non-lawyers who are interested enough to dedicate time and concentration to understanding this a bit better. There is some technical language. We’ve included a short section for mothers who are worried about this.

This document focuses on the situation for a father WITHOUT parental responsibility, but also touches upon cases where a father does have parental responsibility. ‘Parental responsibility’ has a specific meaning in law and either arises automatically where parents are married or where a father is named on a birth certificate, or if granted by a court or by a formal agreement between parents after birth. The rules about the involvement of fathers at the start of care proceedings differ depending on whether they have this status.

This explanation is not expressed in a gender neutral way because the law is not gender neutral in this area. ALL mothers always have parental responsibility regardless of marital status etc. Fathers do not always have that same status or the associated rights. This document focuses on those scenarios where the mother has been a victim of serious abuse and the father has a different legal status to her.

What should I do if I don’t want my abusive ex to be told about the care proceedings?

You should raise this issue as soon as you know that social services are considering starting care proceedings. If you have a lawyer (you will be entitled to one under legal aid) it is a good idea to raise this via the lawyer, and ask them to discuss it with the other parties. If social services aren’t willing to make the application, your lawyer may need to do this on your behalf.

If the father of your child is already actively involved in their lives (for example he is, or until recently has been, having contact, or he has been involved in child protection or child in need processes) it is unlikely that the local authority will agree to make this application – and unlikely that the court would agree to any application that was made on your behalf.

Even if the father of your child is not actively involved in the children’s lives you will still need to demonstrate that there is a good reason to keep the fact that there are care proceedings a secret from him. This would usually be because there is some risk to you or the children that simply cannot be managed without keeping things secret. In most cases it is possible to manage risk – for example, by restricting access to documents and addresses and setting up hearings so you don’t need to come into physical contact or see one another.

What the rules say :

A father with parental responsibility must be notified, served with the application and is an automatic party to ANY family court case that concerns his child (Rule 12.3 FPR). So, unless the court makes some other order he has exactly the same rights at the mother.

A father without parental responsibility is not entitled to be given notice of most types of court case about his child (although the court will sometimes specifically direct that he is notified once the case has started) – care proceedings are one exception. When social services start care proceedings paragraph 3.1 of Practice Direction 12C says that they must send the father a form N6A telling him that the case has been issued. It doesn’t have to send him the papers, and if he did want to become involved the parties could object to that (we deal with that below).

The rules don’t spell out anything about disapplying the rule in Practice Direction 12C, but it can be done. This is because the court has to apply the rules so that they are consistent with the Overriding Objective to deal with cases justly, and has the power to vary how the rules apply to a particular case in order to make that happen (Part 4 FPR).

The rules therefore don’t help with working out when the court might allow such an application.

How would I apply?

The application should be made on Form C2. It would need to set out the reasons why it was said that the father should not be notified. It would make sense for that to be done by the local authority at the same time as it starts the case OR by the party who wants the court to make an exception as soon as they know that the case has begun. In some of the case examples below the local authority applies, in one the mother applies.

In most cases there will be a pre-proceedings process during which these sorts of potential issues can and should be raised, so that if social services are going to issue an application, they can make the necessary application at the outset or can let the court know that it is something that is going to have to be dealt with.

If there is a dispute about who is going to make this application (for example because a mother objects to him being notified but the local authority thinks he should be told) it would make sense for the mother’s lawyer to write to the local authority asking for them to delay sending the notice until the court had dealt with an application made by the mother’s legal team.

The court will most probably want to hear legal argument about this and will need some evidence to support any suggestion that a biological parent should not even know about a court case (and why for example it would not be fairer to make him aware of the case but put other measures in place in the event he expressed a wish to take part).

Arguably, this sort of case should prompt reallocation to a High Court Judge or, at any rate, should prompt consideration of the level of judiciary. It would be sensible to flag this in the C2 form. Where a child is already looked after and s22(4) Children Act duties of consultation apply, there is an even stronger argument for this matter being dealt with in the High Court (see below ‘When a child is looked after‘).

When should I apply?

Any party who seeks this sort of order should make the application as soon as the case is begun. A local authority who knows another party has raised this issue should make the court aware of it in the application form.

When might the court agree a father should not be told about care proceedings concerning his child?

This will depend on the particular facts and background.

There is limited case law and much of it relates to cases where a father has parental responsibility. It is not possible to directly apply this caselaw to cases involving a father without parental responsibility.

Only one of the cases we have found is a binding precedent. The rest are High Court decisions which are ‘persuasive’ only. However, taken together, that caselaw suggests that the court is only likely to suspend the operation of the rule about notice in cases where there is a proven history of past serious harm (including but not limited to rape) and where there is a current and ongoing risk of more harm to the mother or child (who both have a right to family life that the court must protect) if the father finds out about the case. That risk of harm might be (for example) a risk of direct physical harm, or of the potential psychological impact on the family unit arising from the notification (for example fear of being tracked down).

Although there is authority to support the proposition that a high degree of exceptionality will be required to exclude a father without parental responsibility from knowledge of care proceedings, or from being a party – it is less clear from the caselaw exactly how stringent the test is in a case of fathers without parental responsibility, some of whom will be actively involved in a child’s life, notwithstanding their lack of legal status – and some of whom will never have had any meaningful relationship with the child at all.

It IS reasonably clear that in cases where the father has established a right to family life with the child under Article 8 ECHR, and has fair trial rights to go with that (Article 6) it will be harder to justify than in a case where he doesn’t have those rights. It is therefore important firstly to establish whether the father can rely on his ECHR rights at all. The court will therefore need to look at the history of the parents’ relationship (was there a settled relationship and family life together as a unit at some point), and of the relationship, if any, between the child and the father (does the child know the father, has he been regularly and recently involved etc).

Whether or not the father has a right to family life, much will depend on :

• the nature and gravity of past abuse and whether it was directed at or witnessed by the child or otherwise impacted upon him / her
• the extent of any ongoing impact upon the mother or child (for example how emotionally / psychologically vulnerable and fearful do the mother or child remain? Where a child is conceived of rape, the re-involvement of the father may potentially have an adverse impact on the mother.
• any attempts to contact, track down or harm the mother or child since separation
• the recency of any incidents
• whether or not the father is at liberty or likely to be at liberty in the foreseeable future

But if he DOES have that right to family life, it will be harder to persuade the court to exclude him completely.

The court might make an order ‘for now’, on the basis that if certain trigger events happen, the issue should be restored to the court for reconsideration (for example if the local authority seeks to remove the child from home, if it becomes apparent an application for placement orders is to be made, if the father were to seek contact).

For readability, the cases we have distilled this from are as summarised at the end of this post.

What about a father who DOES have parental responsibility?

He will be an automatic party and he will have Article 6 and 8 rights. It will require a ‘high degree of exceptionality’ to exclude him from proceedings (and by extension to not notify him).

What safeguards are there for a victim of rape if the court says a father should be notified?

If a father is notified and expresses a wish to become a party to the case or to apply for orders (e.g contact or parental responsibility) all those already involved will be given an opportunity to object to that. Because all parents in this type of court case are entitled to legal aid, both parents should have a lawyer to make these arguments on their behalf. The court could :

• refuse to make them a party, and therefore they would not be entitled to attend hearings or have any further information about the case (but see above – thr court could say this was subject to review if things change)
• make them a party but :
  • limit their access to documents
  • put special measures in place to prevent the victim and abuser coming into contact or being in the same court room / building (or using video links, screens etc)
  • ensure that if any evidence has to be given, the abuser is not able to directly question the mother
  • manage the issues so that things which have already been proved (eg a conviction for rape) do not have to be gone over again

When a child is looked after

In some cases a child will be already looked after voluntarily by social services when a case comes to court (under s20 Children Act 1989). In those cases social services will have a completely separate and freestanding duties to consult parents with and without parental responsibility under s22(4) Children Act 1989 before making decisions about a child insofar as that is ‘reasonably practicable’. Deciding to initiate care proceedings is probably a ‘decision’ that triggers that duty, but it would probably not be reasonably practicable to consult if the consultation would expose the child or parent to a significant risk of harm. So in cases where an issue has arisen about non-notification of a father without parental responsibility the local authority might also need to seek a confirmation from the High Court that not consulting in this respect is lawful.

The case law

There may be other case law. Below are the most obviously relevant cases we have located.

CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34 (24 May 2017)

HHJ Bellamy (sitting as Deputy High Court Judge) was asked to approve the non-notification of a father when care proceedings were issued concerning his child. He approved that order. It is a mark of how unusual and difficult such an application was that he invited the Attorney General to intervene in the proceedings – this is extremely unsual.

The case involved a father with an extensive history of criminality (along with his family). Some of his convictions were for violence but not against partners. According to the mother, there was a history of repeated domestic abuse and threats to kill and, after separation, a pattern of further violence, relocation by the mother, the father finding them and either forcing his way in or being let in. There were suggestions of repeated attempts to trace the mother and threats to her life or health. It was contended by the mother that there was a real risk that he would seek her out and that he would be threatening and violent towards her and her family.

The father had not seen the children for a number of years.

The court first of all considered whether or not the father had an existing right to family life under Article 8. The judgement helpfully sets out some of the European case law on what will and will not give rise to an Article 8 right and ‘de facto family ties’. HHJ Bellamy summarises the law on this issue as follows:

(a)       the determination of whether family life exists is essentially a question of fact;

(b)      family life is not confined solely to marriage-based relationships; however,

(c)       mere biological kinship is not of itself sufficient to constitute family life;

(d)      cohabitation, though not a pre-requisite, is an important factor to be taken into account when considering the existence or otherwise of family life; however,

(e)       other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto family life;

(f)       there must be evidence of a close personal relationship, a demonstrable interest in and commitment to the child.

HHJ Bellamy decided in that case that the father didn’t have Article 8 rights as his role had been and would continue to be so peripheral.

He also considered the father’s right to a fair trial under Article 6 ECHR and said that because he had no Article 8 rights, Article 6 didn’t come into play (wasn’t engaged).

HHJ Bellamy said this :

In this case, the mother says she was the victim of domestic violence on a regular basis (she says at least once every two weeks) and that she sustained bruising. I have accepted her evidence on that issue. The most recent incident was in 2011 when CD attempted to break in to her home. Since then the mother has been fearful that CD would try to find her and believes that he has tried to do so.

The decision not to notify a father without parental responsibility that his child is the subject of care proceedings has to be justified by an assessment of risk. In this case, even if CD’s Article 6 rights were engaged (and for the reasons I have already given I am satisfied that they are not) then for my part, I am doubtful that the level of domestic violence and consequent risk crosses the hurdle of exceptionality justifying a decision to allow the Article 8 rights of the mother and X to override his Article 6 rights.

It is unusual, we suggest, that the judge effectively accepted the mother’s allegations about the serious harm that the father had caused, and consequently the risk he posed, without hearing from the father (these were not matters he had been convicted for). We think there would be potential for this approach to be challenged in any future similar case. However, he wasn’t sure that the violence and risk she had described would have been sufficient to prevent him being given notice to the ‘high degree of exceptionality’ that would be required to displace his Article 8 and 6 rights. It was only because the judge had decided he had no Article 6 or 8 rights that the application was allowed.

The judge said that “the decision that a parent [without article 6 or 8 rights] should not be served with Form C6A still needs to be justified on the facts and not in an arbitrary manner. Risk and welfare will be important factors in considering whether to give permission to a local authority not to serve a birth father with Form C6A.”

The conclusion was that on the lower threshold applicable to parents without ECHR rights in play, the evidence of risk was sufficient to justify the father not being told.

Re X (Care : Notice of Proceedings) [1996] 1 FLR 186

This case was decided under a different set of rules that applied in the nineties, which gave a general discretion to the court regarding service. It also concerned the adoption of a baby with the mother’s consent, who the father didn’t even know existed. This authority does not assist greatly but confirms that the court will need to consider the risks arising from service of notice.

A Local Authority v M and F; the Children (By Their Guardian) [2010] 1 FLR 1355

This decision by Hedley J involved a father who DID have parental responsibility (and thus WAS entitled to Article 8 and 6 protections). This is an example of an application made by a mother rather than a local authority. The application was to prevent notification AND to discharge the father as an automatic party to the case. The local authority contested it. The application would be self-defeating if counsel were to act with reference to the father, so the court made use of the advocate to the court, who set out the issues to be addressed. As with the involvement of the Attorney General, the involvement of a special advocate to the court (to assist the court to think through all the issues without involving the father and making the whole exercise pointless) is a highly unusual step which marks that this sort of application is exceptional. This application was determined under the previous rules.

Taking into account the human rights of the parties, under Arts 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and the essential context of fairness, the starting points were:

(i) that the father should be entitled to participate in the case; and

(ii) that the children and mother should not be put at risk of serious harm by the conduct of the proceedings.

In considering (i) the court should start with full participation, then consider partial participation, such as disclosure of redacted documents, and then, only as a device of the last resort, exclusion from the proceedings.

In considering (ii), the court must be alert both to risk and to the magnitude of consequences should the risk eventuate, and must also consider whether and to what extent the risk could be managed by the court’s control of its own processes

On the facts of this case, nothing short of complete exclusion would ensure the family’s safety. Again, the court said that the exclusion of the father must be kept under review. It was also relevant that the father had not really shown any interest in the children.

Re A (Father: Knowledge of Child’s Birth) [2011] 2 FLR 123

This is a  Court of Appeal authority and thus binding. However the facts were highly exceptional: an Afghani family were traumatised by murders, kidnapping and violence perpetrated against their family by the Taliban, leading to mental ill health and PTSD related violence on the part of the father. The mother and elder children, on discovery of the pregnancy, wished to conceal it from the father and secure the child’s safety through adoption. It was said that the disclosure of the child’s existence to the father would precipitate a mental breakdown. Importantly, due to the marriage, the father had automatic parental responsibility. The court at first instance refused the application and the Court of Appeal agreed, confirming that :

• cases involving well established relationships would almost never succeed in justifying exclusion – a very high degree of exceptionality is required
• The exceptionality test did not require significant physical risk to be demonstrated; harm and risk came in many guises; in family proceedings it was extremely dangerous to state that there was only a single path to exceptionality
• When evaluating the risk of future harm, there was no minimum requirement; the greater the harm the smaller need be the risk. The balance of probability was, therefore, not the correct test to apply to the existence of a future possibility of harm.

UPDATE MARCH 2020 : This guidance should be read in light of the case of A, B And C (Adoption: Notification of Fathers And Relatives) [2020] EWCA Civ 41. That case concerns the non notification of family members in adoption cases, and focuses on relinquishment of babies – but will still have some application to care proceedings involving children who are not likely to be the subject of a plan for adoption or who have an established relationship with both parents (for example where the children are older and there has been an established relationship where the child has lived with both parents). See linked post.