S (A Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lady Justice Asplin,Lord Justice Baker |
| Judgment Date | 20 June 2023 |
| Neutral Citation | [2023] EWCA Civ 706 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA 2023 000479 |
[2023] EWCA Civ 706
Lady Justice King
Lady Justice Asplin
and
Lord Justice Baker
Case No: CA 2023 000479
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT SITTI NG AT SWINDON
Her Honour Judge Wright
SN22C50114
Royal Courts of Justice
Strand, London, WC2A 2LL
Jennifer Swan (instructed by Bevirs Law) for the Appellant
Tracey Hennessey (instructed by the Local Authority) for the First Respondent
Neil Johnstone (instructed by Wilsons Solicitors) for the Second Respondent
Andrew Bond (instructed by Reeds Solicitors) for the Third Respondent
Hearing date: 8 June 2023
Approved Judgment
This judgment was handed down remotely at 11.00am on 20 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This is an appeal brought by a biological father without parental responsibility (‘the father’) against the decision of HHJ Wright made on 20 February 2023 whereby she refused his application to be joined as a party to care proceedings in relation to his son (‘S’).
The issue before this court is whether the judge, in deciding whether to join the father as a party to the care proceedings, applied the wrong test and, as a consequence, fell into error in concluding that there was a justifiable reason for dismissing his application.
In order to ensure that a listed Issues Resolution Hearing can proceed the following week, we informed the parties of our decision to:
i) Allow the appeal;
ii) Join the father as a party;
iii) Remit to the judge at the Issues Resolution Hearing all questions as to the extent and form of the father's involvement in the proceedings including the disclosure and redaction of documents.
The following are my reasons for allowing the appeal.
Background
The appeal concerns S, aged 11, who has a number of physical, emotional and neurodevelopmental issues. S's mother (‘the mother’) is the Second Respondent. S was born as a consequence of a consanguineous relationship between the mother and the father, as whilst the father is S's biological father, he is also the paternal uncle of the mother. The father is not named on S's birth certificate and does not have parental responsibility for him. S believes that the father is his uncle.
The mother conceived S when she was 17 and living with the father who had assumed a parental role following the death of her own father. In December 2019, after a little over 8 years of the mother, father and S living as a family, the mother left the family home and moved to a different part of the country. At the same time, she made allegations of rape against the father to the police, including an allegation that S was conceived following rape. The father has now been charged with two counts of rape and one of sexual assault. His plea hearing took place on 19 May 2023.
As a result of concerns which were unrelated to the father, S was made the subject of a Child in Need plan in early 2022. S was then made the subject of a child protection plan under the category of neglect in August 2022 and on 26 October 2022, the local authority issued care proceedings.
The father was given notice of the proceedings in November 2022 and made an application to be joined as a party as soon as was practical on 2 December 2022. A hearing was listed on 9 January 2023, at which the court gave directions and listed a contested hearing for 20 February 2023. At that hearing, the father's application for joinder was opposed by the local authority, the mother and the Children's Guardian. As already noted, the judge dismissed the father's application to be joined as a party.
The Legal Framework
The law in relation to the joinder of fathers who have not got parental responsibility has long been settled and there is no dispute between the parties as to the proper approach. The issue in the present case is not whether the judge went beyond the wide discretion afforded to judges in relation to such case management decisions, but whether the judge applied correctly the principles underpinning the decision she had to make.
Under r.12.3(2) of the Family Procedure Rules 2010 (‘FPR 2010’), an applicant has an automatic right to be made a party to proceedings if he or she has parental responsibility for the child concerned. Since the 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.’
There is no guidance in the FPR 2010 or the Children Act 1989 as to the factors that the court should consider when exercising its discretion under r.12.3(3)(a) FPR 2010. The court must, however, apply the overriding objective in r.1.1 FPR 2010.
There are a number of guiding principles set out in the authorities:
i) The child's welfare is important but not paramount: North Yorkshire County Council v G [1993] 2 FLR 732.
ii) Where a father without parental responsibility applies to be joined as a party to care proceedings concerning the child, there is a presumption in favour of granting the application unless there is a ‘justifiable reason’ for refusing it: Re B (Care Proceedings: Notification of Father without Parental Responsibility) [1999] 2 FLR 408 (‘ Re B’); Re P (Care Proceedings: Father's Application to be Joined as a Party) [2001] 1 FLR 781 (‘ Re P’).
iii) There is no requirement for a father without parental responsibility to show ‘an arguable case’ or even to have a specific application to make. Holman J said in Re B [p 413]:
“So joining the father as a party does not really depend upon the existence of ‘an arguable case’ at all. The father may not have any particular application that he wishes to make, but nevertheless in my judgment, ought ordinarily to be able to be heard, if he wishes to be, before major decisions are made.”
iv) What amounts to a ‘justifiable reason’ to rebut the presumption in favour of a father being joined as a party is a matter for the discretion of the judge having considered and put into the balance all relevant matters.
v) There is no requirement to consider the factors in s.10(9) Children Act 1989 which relates to the joinder of persons in relation to section 8 Children Act 1989 private law proceedings.
vi) The court must consider the parties' Article 6 and 8 rights, including those matters set out in Re CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34 at [29] (‘ Re CD’) which are:
“(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.”
Even without parental responsibility, the father is treated under the Children Act 1989 as a legal parent and is entitled as of right to apply for any orders in respect of his child. Further, if his child is in care, the father is entitled under s.34(1) Children Act 1989 to reasonable contact with his child subject to a court giving the local authority permission to refuse it.
Given the father's status as a legal parent, it is unsurprising that the starting and often finishing point when considering whether a father without parental responsibility should be joined as a party, is the presumption in favour of his being granted party status regardless of whether he has or has not a good arguable case. It follows that, before refusing a father's application, the court must find on the facts that there is a justifiable reason not to join the father and not that the father must establish a justifiable reason to be joined.
Potential mitigation of the impact of the joinder of a natural father
As is often the case in relation to well established law, the authorities are relatively old. I would for my part bearing in mind the most recent iterations of the FPR 2010 add one further matter to be placed in the balance where a court is faced with an objection to a father being joined as a party in care proceedings. In my view, the presumption in favour of a father being joined to the proceedings should not be displaced if the concerns of the other parties (often the mother) can be properly mitigated by the court making use of the extensive tool kit now available to it in the form of its general case management powers and its powers in relation to vulnerable parties.
Under r.4.1(b) FPR 2010, the court has...
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