Joining fathers without parental responsibility as a party to proceedings

Sue Gilbourne looks at a Court of Appeal case which considered the guiding principles to be applied as to whether a father without parental responsibility should be joined as a party to proceedings.

In S (A Child) [2023] EWCA CIV 706 S was conceived 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 parental uncle of the mother. Mother left the father when S was 8 and alleged rape against the father to the police, including an allegation that S was conceived following rape. The father was subsequently charged with two counts of rape and one of sexual assault.

Child protection procedures were instigated as a result of concerns which were unrelated to Father. When the local authority issued care proceedings Father was given notice of the proceedings and Father sought to be joined as a party. Father’s application for joinder was opposed by the local authority, the mother and the Children’s guardian. The judge dismissed the father’s application to be joined. Father successfully appealed.

Neither the local authority nor the children’s guardian opposed the appeal, accepting that the judge had fallen into error in : a) holding that the father had to demonstrate an arguable case; b) reversing the burden of proof by holding that it was for Father to justify joinder; c) holding that Father had not established an Article 8 right to family life and accordingly had no Article 6 rights to a fair trial and d) failing to consider whether the impact of joining the father could be sufficiently ameliorated by making a case management decision. Mother maintained her opposition to the father being joined as a party, although accepted that the judge had erred in holding that the father had to demonstrate an arguable case.

Legal framework

A father without parental responsibility does not have an automatic right to be made a party to care proceedings and an application therefore has to be made under rule 12.3(3)(a) FPR 2010.

The case confirmed that there is no guidance in the FPR 2010 or the Children Act 1989 as to the factors that the court should apply when exercising its discretion under rule 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 the proceedings’ but it must apply the overriding objective in rule 1.1 FPR 2010.

The case confirmed 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 P (Care Proceedings: Father’s application to be joined as a Party) [2001] 1 FLR 781.

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: Re B.

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 factors.

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 Article 8 rights, including those matters set out in Re CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 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 of 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.

The court noted that as a father without parental responsibility is treated as a legal parent under the Children Act 1989 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.

The court further made reference to rule 4.1 (b) FPR 2010 and its power, inter alia, to make such orders for ‘disclosure and inspection, including specific disclosure of documents as it thinks fit’ and whilst it noted that the court’s power to control documentation should only be used when ‘strictly necessary’ with the court ‘being rigorous in its examination of the feared harm and careful to counterbalance any resulting disadvantages to ensure a fair trial’ Re R (Children: Control of Court Documents) [2021] EWCA Civ 162 it highlighted that the use of such general case management powers would in most cases ameliorate any perceived harm in relation to the management of disclosure, as was the case in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017 and which could be applied in this case.

In addition, the court noted the extensive measures that can be put in place by the court for the participation in proceedings and the giving of evidence by vulnerable persons as set out in rule 3A and PD3AA FPR 2010.

The court joined Father as a party and remitted only issues of disclosure and participation.

Sue Gilbourne is a barrister at St Mary’s Family Law Chambers.