Bury Metropolitan Borough Council v ML & Anor
| Jurisdiction | England & Wales |
| Judge | MacDONALD J |
| Judgment Date | 04 April 2022 |
| Court | Family Division |
Care proceedings – Party status – Discharging father – Allegations of neglect and sexual and physical abuse – Child wanted father excluded – Father had not had any contact with child for eight years – Attorney General’s engagement with proceedings – Untested allegations as foundation of application to exclude – Whether harm to child in father’s continued involvement.
The parents separated in 2006, when the children were aged 3 and 1. On 1 December 2014, the father and his new partner were convicted of child neglect. This was seemingly only in relation to the elder child; a social work record recorded that the younger child had made an allegation against the father but that the police had been unable to substantiate it, due to the absence of injury. The father and his new partner received an 18-month conditional discharge and the father was made subject to a two-year restraining order preventing him from contacting the mother or the elder child. In fact, after this, the father did not play an active part in the life of either child.
In July 2020, there were concerns about the relationship between the younger child (now a teenager) and the mother, who had a new boyfriend. The social worker made a statement describing the mother as very detached and not acknowledging that the child was experiencing severe difficulties. On occasion, the mother refused to allow the child to return home, in which case the child stayed with friends. The Child and Family assessment identified the closure of schools because of Covid as one possible trigger. In August 2020, the mother requested that the child be accommodated under s 20 of the Children Act 1989. A placement was found but the same sort of difficulties continued. The local authority view was that these were prompted by thoughts and anxieties about both the past and the present. In the assessment, the authority described her has having experienced a lot of instability and rejection from key adults, with ‘lived experience’ punctuated by uncertainty, unpredictability and abuse. In August 2021, the younger child made further allegations of physical abuse and also allegations of sexual abuse against the father. These were reported to the police. The father was requested to leave his family home, arrested and released on bail with conditions that he not contact the child. Both children ultimately declined to provide statements and the police closed the case. The children living within the father’s own household did not report any concerns and the father returned to the family home and resumed their care.
The local authority issued care proceedings in respect of the younger child in September 2021. The Form C110A named the father and recorded that he had parental responsibility for the child. The first directions order made no mention of an issue concerning the father’s party status, and directions were made for him to file and serve a response document. However, in October, an order recorded that the local authority had not served the father, and intended to make an application ‘to be relieved of its obligations to serve him pursuant to FPR 2010 and to consult with him’. In November the authority issued a C2 application seeking to ‘withhold the application and court papers’ from the father. At a hearing on 3 December the local authority application was expressed to be an application ‘to remove his party status and to be relieved of its obligation to consult him in respect of any matters pertaining to [the child]’. On 17 December the authority issued a further application on Form C66 for ‘leave to invoke the inherent jurisdiction for permission not to serve a father with PR and to remove him as a party to the proceedings’. A further C2 application was issued by the authority on 5 January 2022, seeking ‘Permission not to serve father and remove him as a party pursuant to rule 12(3) and 12(4) FPR 2010’. On 10 January, the authority issued yet another, amended, application on Form C66, this time stated to be an application for ‘Leave to invoke the inherent jurisdiction. Declaratory relief that the local authority need not comply with its duties pursuant to section 22 and 26 of the Children Act 1989’.
The father was not seeking to care for the younger child but was seeking contact with her. In his communications with the local authority, he expressed a firm wish to be involved in the proceedings and lodged a formal complaint with the authority regarding what he considered was a failure to involve him. The father had not been given formal notice of the authority’s various applications, but was aware, in broad terms, of what was being sought. He did not attend the hearing to consider the applications, in circumstances where this would have had the effect of largely defeating the object of such applications, before the court had decided them. Given this, at the invitation of the court, the Attorney General appointed an advocate to the court.
By the hearing date, the younger child, now 16, appeared to be significantly more settled in her placement. She was described as a thoughtful and intelligent young person, who had insight into her situation, was very articulate and able to communicate her wishes and feelings clearly. The care plan was for her to remain in her placement and in time to be supported into independent living. The mother accepted that she was unable to care for the child and supported the application for a care order on the basis of this care plan. The child too did not oppose the care plan, which was also supported by the child’s guardian. At the conclusion of the hearing it was made known for the first time that the child wanted to address the court, however, in the event, after speaking to the legal team representing her and her guardian, she did not pursue this. Her consistently expressed view was that the father should not be involved in the family proceedings in any way.
Held, dismissing the local authority’s applications—
(1) This court accepted that its statement in A Local Authority v M and others [2020] 4 WLR 157, to the effect that, where an application was made not to serve a parent with proceedings, consideration should be given to inviting the Attorney General to intervene if the party concerned was not before the court to argue the contrary case, must be treated with caution, in light of the tightly proscribed role of the Advocate to the Court, confirmed in Re A (father: knowledge of a child’s birth) [2011] 2 FLR 123 and by the terms of the President’s Guidance: The Role of the Attorney General in Appointing Advocates to the Court or Special Advocates in Family Cases. It was not the Advocate’s role to martial contrary evidence or to put a contrary case on behalf of the father (see [4], below).
(2) Given that the court had had no notice of the child’s wish to address it, until the very end of the hearing after submissions had been made, self-evidently, there had been no opportunity to comply with Guidelines for Judges Meeting Children who are Subject to Family Proceedings [2010] 2 FLR 1872 (or, arguably more appropriately in circumstances where the child wished to speak to the applications before the court, the principles set out in the authorities concerning children and young people giving evidence). Of course, children and young people were apt to change their minds, but this simply served to emphasise the need to deal with the question thoroughly, well ahead of the hearing. The task of a judge speaking to, or hearing from, a vulnerable child or young person who might have certain expectations, sometimes misplaced, about the proceedings, was a challenging one. It required to be carefully planned. In some cases, a misdirected or poorly judged phrase in a hurriedly arranged exchange between the child and the court could have enormous adverse consequences. Consideration also needed to be given to how the court was to treat what it heard from the child or young person and to decide whether the parties would be invited to respond. It was vital that the principles set out by this court in London Borough of Brent v D and Ors (compliance with guidelines on judges meeting children)[2017] EWHC 2452 (Fam) were followed and it was simply not acceptable to leave these matters until the last minute (see [5], below).
(3) Five separate applications had been issued in relation to orders sought by the local authority with respect to the father’s status in the proceedings. The court had proceeded on the basis that the authority was pursuing (a) an application for an order removing the father as a respondent to the care proceedings and (b) an application for a declaration under the inherent jurisdiction that the authority need not fulfil its obligations towards the father under ss 22 and 26 of the Children Act 1989 (see [20], below).
(4) The starting point was that the father should, as a parent accorded parental responsibility for the child by law, be able to participate in proceedings concerning the child; this was based both on his status as a party in care proceedings under the Family Procedure Rules 2010, and the demands of art 6 of the European Convention on Human Rights, as incorporated into domestic law by the Human Rights Act 1998. By reference to Re X v Y (children), the father’s knowledge of proceedings did not prevent his removal as a party per se, but the weight to be attached to the starting point was increased where a parent with parental responsibility, an automatic respondent to the proceedings, who had previously been consulted by the local authority, had been made aware that proceedings were to be issued and had expressed a wish to engage in them, thereby indicating an explicit wish to seek to exercise their rights under domestic law and art 6. In these circumstances, the question for the court concerned the impact on the child of the father’s continued involvement in the proceedings (see [58], [59], below).
(5) Given that the countervailing factors...
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