The Mother v Northumberland County Council
| Jurisdiction | England & Wales |
| Judge | Macur LJ,Bean LJ,King LJ |
| Judgment Date | 13 August 2021 |
| Neutral Citation | [2021] EWCA Civ 1221 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2021/1152 |
[2021] EWCA Civ 1221
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
HHJ Wood
NE21C00257
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Macur
Lord Justice Bean
and
Lady Justice King
Case No: B4/2021/1152
Mr Martin Todd (Instructed by Wollens) for the Appellant
Mr Frankie Shama (Instructed by Northumberland County Council) for the Local Authority
Ms Susan Boothroyd (Instructed by Richard Reed Solicitors) for B (Children)
Hearing date: 4 August 2021
Approved Judgment
Introduction:
The Appellant is the mother of B, a female child who is nearly 3 and C, a male child who is nearly 5 months old. B and C are subject to care proceedings initiated on 4 May 2021 and are presently in foster care. B and C are represented by their Children's Guardian. C's father is party to the proceedings. This appeal is brought against the order of HHJ Wood, sitting as a judge of the High Court on 24 June 2021, which refused the mother's application for permission to dispense with the requirement for the local authority to give notice of the proceedings to ‘S’, the biological father of B in the circumstances I describe below.
FPR Practice Direction 12C – ‘ Service of Application in Certain Proceedings’ supplements FPR 2010 rule 12.8, in relation to the service of documents that must be served by the applicant and when in proceedings including those for a care and supervision order pursuant to section 31 of the Children Act 1989. FPR rule 12.3 specifies that the respondents to an application for a care or supervision order will be “every person whom the applicant believes to have parental responsibility for the child”. FPR PD 12C, 3.1 provides that subject to 3.2 (the Court's direction that such notification is not required), the applicant must also serve ‘every person whom the applicant believes to be a parent without parental responsibility for the child’ with a copy of Form C6A ( Notice of proceedings/Hearings/Directions Appointment to Non-Parties). That person may then seek to be joined as a party to the proceedings using the procedure set out in FPR Part 18 and PD18A, although there is no obligation upon them to do so.
Proceedings in the Court at first instance
In a witness statement served in support of her application the Appellant asserts that B was conceived during one of several incidents of non-consensual sexual intercourse and that S's reaction on becoming aware of the pregnancy was so abusive, aggressive, and threatening as to cause her to fear for her and B's physical safety if he is alerted to the proceedings. The Appellant says that S demanded that she have a termination or that he would kill the child. He said he did not want children. In a text message that he sent about this time he said that if anything was said to alert his wife to the situation that “you will see a very, very different side of me”. In another text message he said, “Do whatever you want but keep me the hell out of it otherwise I will make it my life's job to fuck your life up”. He then blocked the Appellant's telephone number and has played no part in B's life. The Appellant concludes her statement by saying: “It concerns me that if [S] was to become involved in [B's] life she would be in danger as he threatened her life before she was born and clearly has a lot to lose by his wife and family finding out what happened. I am also concerned about my safety given the sexual violence and threats of physical violence.”
The Judgement under review
The judge accepted that the mother's evidence should be taken at face value for the purpose of determining her application. (at [10]). He observed that the mother's relationship with S arose in the context of her employment and that S was in a senior position to her. He described the circumstances of the non-consensual sexual intercourse as “plainly very nasty, very abusive behaviour of its type”. (at [5] and [6]). The mother said that she had engineered her dismissal from her employment in 2018 to distance herself from S and that ‘there is no evidence that she has ever come into contact with him since’. There was information from the police that revealed cautions in 2004 and 2008 for assault occasioning actual bodily harm and a public order offence respectively recorded against S. There may have been two child concern notifications in 2020, and reference to domestic abuse in 2011. He had recently undergone DBS checks in order to carry out work with contact to children or vulnerable adults. (at [9]).
The Judge proceeded on the basis that S “(at [12]” “has no parental responsibility…has no relationship with his daughter and the evidence is of intimidation, control and sexual exploitation.” The Judge said he had been taken to leading authorities in relation to dispensing with service on a birth father, perhaps the most recent and most often cited one, that of MacDonald J in Re A local authority v B (Dispensing with Service) [2020] EWHC 2741, which he considered related in significant measure to cases involving adoption. He had been invited to regard the decision in CD (Notice of care proceedings to father without PR) [2017] EWFC 34 and Re M (Notification of Step-parent Adoption) [2014] EWHC 1128 as indicating a ‘rights-based’ approach. It had been submitted that S had no Article 8 or 6 rights, and on the balancing of risk to the mother and B of him being told as against his notification of the proceedings, the balance should fall squarely in favour of dispensing with service upon him. (at [12]).
The Judge referred to the factors identified by the Court in Re A and in particular the need for “(at [13]” “ rigour in analysing the risk and the gravity of the harm that is feared before taking, and I am using his words, this exceptional ‘last resort’ step” denying S an opportunity to participate in the proceedings. This fell to be considered alongside the identified need “ for there to be strong countervailing factors that would prevail over notice to a birth father in such circumstances.” (See Re H, re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646.)
The Judge considered that the factual circumstances of the authorities to which he had been referred related to “really very significant violence and abuse over sustained periods of time”. There was no ‘corroboration’ in this case other than the threats made via social media. The threats needed to be viewed in context. S would not be the first putative father to demand the pregnancy be terminated. The principal motivation appeared to be to ensure that his wife was not alerted. Nothing had occurred following the threats. S had made no attempt to contact the mother. The work relationship had ended. There had been no social contact, contrived or accidental since. There were ‘significant measures’ that could be put in place ‘to protect’. (at [15] – [18])
The Judge also took into account B's article 8 rights and her welfare generally. B was living under a ‘false prospectus’ regarding her paternity, and one that was going to be ‘increasingly difficult to maintain given that she would appear to be a child of mixed-race heritage’. A genetic assessment had not been ruled out. There could be placement applications outside the family. (at [14] and [19] – [21]).
The Judge concluded that:
“22. In weighing all these factors together, I am not satisfied that this is an exceptional case. I am not satisfied that the risk in this instance is of such an order that it cannot be managed, and appropriate measures put in place. In the circumstances, for the reasons I have endeavoured to give, I am satisfied that the application should be refused. What I want to add is this: clearly notification to S needs to be handled with great sensitivity. If he remains married, living with a family, the capacity to cause him great embarrassment is obvious, and I would like some imaginative thought put into how he be approached and contacted and his wishes in terms of the litigation and potentially playing any part in his daughter's life understood in a way that can cause him the least embarrassment.”
The Appeal
There are two grounds of appeal. First that the Judge had failed to take into consideration the fact that S had not acquired any article 8 rights regarding family life with B. Second that the Judge erred in the balancing exercise he performed since: (a) he applied a higher test of exceptionality to justify non service of form C6A which is unwarranted in the case of a parent without parental authority; (b) had failed to take into account the interference with the article 8 rights of the mother and the child; and (c) wrongly assessed the level of risk.
The Local Authority and Children's Guardian did not seek permission to dispense with service of a C6A notice upon S and were described by the Judge to “have sought to take a broadly neutral stance”. Both seek to uphold the Judge's decision on appeal. In summary, they argue that the Judge did not attribute article 8 rights to S and consequently he did not misdirect himself as to the need for a ‘higher exceptionality’ before dispensing with the need to serve him with notice of the proceedings, and conducted the balancing exercise having regard to all relevant facts, reaching a determination that was reasonable in all the circumstances.
Discussion
Mr Todd, who represents the Appellant but did not appear below, drafted the grounds of appeal as a matter of urgency without the...
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