Mother loses appeal over order that father should be informed of care proceedings

The Court of Appeal has dismissed an appeal against an order that a child’s biological father should be informed of care proceedings concerning his daughter against the mother’s wishes.

HHJ Wood had ruled in the High Court that the father S should be told of the proceedings concerning child B in line with the normal requirement for the local authority to give notice to parents.

B’s mother though appealed against this saying she feared for her safety were S to be notified.

The mother said in a witness statement 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 were alerted to the proceedings.

She said S had threatened to kill the child unless she underwent an abortion and warned in a text that if anything was said to alert his wife to the situation "you will see a very, very different side of me".

He then blocked the mother’s telephone number and has played no part in B's life.

The witness statement concluded: “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.”

HHJ Wood had found was no corroboration in this case other than the threats made via social media, and nothing had occurred following the threats and S had made no attempt to contact the mother.

The judge also noted that B was living under a 'false prospectus' regarding her paternity, which would be “increasingly difficult to maintain given that she would appear to be a child of mixed-race heritage”.

This led to the conclusion: “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.”

He said though that 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”.

In B (Children), Re [2021] EWCA Civ 1221 Lady Justice Macur said there were two grounds of appeal - that HHJ Wood failed to take into consideration that S had not acquired any article 8 rights with B, and that he erred in the balancing exercise he performed.

Macur LJ said: “There is no issue in this case, but that S does not have parental responsibility for B, and he has not acquired any Article 8 rights in so far as his family life with B is concerned.

“Simply put, he has had nothing to do with B whilst ‘en ventre sa mere’ or since birth. There was no need for [the mother] to set up a straw man and there is no doubt on reading the judgment that the judge did not proceed under any misapprehension in this regard. There is no merit in [this] ground of the appeal.”

She could not see any valid criticism of the way HHJ Wood conducted the balancing exercise on whether S should be informed and the mother’s counsel had not been able to identify anything the judge wrongly failed to or wrongly took into account.

“The judge was entitled to view the nature of the risk in terms of the context in which the threats were issued, the terms that were used, the motive behind them and the absence of any subsequent behaviour,” Macur LJ said.

She expressed concern about how S might be informed of the case and criticised the local authority’s plans for this.

“It is necessary to record my concern regarding the lack of thought has been given to the actual process of serving S to observe…all necessary sensitivities in so far as S's confidentiality is concerned,” Macur LJ said.

“It is not for this court to case manage the ongoing proceedings, but the local authority and guardian's hastily assembled suggestion for the manner of service as presented to the court…did not reassure me.”

Macur LJ said once S's whereabouts were discovered a social worker could serve the relevant form while protecting the identity of both the mother and B's whereabouts and reassuring S of confidentiality.

“I see no reason why S's private details should be made known to all the parties in the case,” she added.

Mark Smulian