The Court of Appeal grants father’s appeal against refusal to grant him party status in care proceedings.

Posted on: July 6th, 2023

Case Digest

S (A Child) [2023] EWCA Civ 706

The Court of Appeal was handed down judgement in which a biological father without parental responsibility appealed against the decision that refused his application to be joined as a party to proceedings in relation to his son.


S, aged 11, who was born with severe physical, emotional, and neurodevelopmental issues and who was born as a consequence of rape. Father of S (F) is the biological father of S, he is also the paternal uncle of Mother. S believes that F is his uncle.

Mother’s father died and F took on a parental role of M. A little after 8 years the mother made allegations of rape against F including that S was conceived following rape. F has now been charged with two counts of rape and one of sexual assault.

Father was given notice of proceedings in November 2022 and made an application to be joined as a party. A hearing was listed in February whereby father’s application to be joined as a party was opposed by all parties.

As there is no guidance under the Family Procedure Rules 2010 or the Children Act 1989 as to the facts that the Court should consider when exercising its discretion under r 12.3(3)(a) FPR 2010. There are several guiding principles set out in case law which includes:

  • The Child’s welfare is important but not paramount. North Yorkshire County Council v G [1993] 2 FLR 732.
  • Where father without PR applies to be joined as a party there is a presumption in favour of granting this application unless there is a ‘justifiable reason’ for refusing it (as stated in Re B (Care Proceedings: Notification of Father without PR) [1999] 2 FLR 408.

However, it was noted that even without PR the father is treated under the CA 1989 as a legal parent and is entitled as of right to apply for any orders in respect of his child. It was highlighted that 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.

It is stated that there is enough protective measures if other parties are concerned, and the Court has general case management powers in relation to vulnerable parties. The Judge states that this power would be ‘strictly necessary’ if the alternative was to deprive a natural father of the opportunity to be a party to the care proceedings in relation to his child.

Judge’s Decision

The Judge believes that F should have some kind of arguable case, given that there is objection raised by other parties. However, the right of both S and F should be considered under Articles 6 and 8 of the European Convention on Human Rights.

The Judge went on to refuse the application setting out seven matters she took into account, stating the impact upon mother and her view that the father had to justify being joined to the proceedings, in the Judges view he had no case to put and was not involved in the issues which related to the threshold.

Upon considering Father’s rights it was concluded that he had ‘no family with S and S’s mother considers F to pose a significant risk to herself and the child.’.

The Judge ruled it justifiable for F to be provided with appropriate information as to S’s welfare but determined it not appropriate to permit F to be joined as a party to the proceedings.

The Appeal

Father was granted permission by Macur LJ to appeal the Judge’s refusal to join him as a party on the grounds that the Judge applied the incorrect test for joinder to care proceedings of a father without PR in that she:

  1. Wrongly considered that she ‘must consider the father’s prospect of success’ and ‘must have some kind of arguable case’.
  2. Wrongly considered that the concerns about the father’s capacity and/or cognitive difficulties effectively precluded him from putting forward a position and participating in the proceedings, despite there being no proper assessment of his ability to do so.

Another ground was that the Judge failed to have proper regard to the father’s article 8 rights and his wish to have an input in proceedings. The final ground was that when considering whether there was a ‘justifiable reason’ to refuse the application, the judge failed to assess the necessity and proportionality of excluding father or to consider whether steps could be taken to mitigate the potential impact of joinder on the mother and S.

Neither the Local Authority nor the Children’s Guardian’s oppose the appeal, but mother maintained her position. The Judge sought that father had no application.

The main reason on Mr Johnstone’s (instructed by mother) submissions was that the Judge initially directed herself correctly on the law, whilst she had said in error that the father needed to show a good arguable case and to justify being joined as a party, on proper reading of the judgement as a whole it could be seen, he submitted, that she had in fact applied the correct test.

That this is the case, Mr Johnstone said, is demonstrated in the final paragraph where the Judge said that: ‘it is justifiable… that the father should not be joined to these proceedings’. The Judge therefore found there to be a ‘justifiable reason’ not to join the father. She had been entitled to reach this conclusion taking into account in particular the distress the involvement of the father would cause to mother, together with the necessity for her to be involved in the proceedings, to participate in assessments and to be open and honest with professionals.

Lady Justice King has stated that Mr Johnstone’s submissions are not sustainable, and the Judge failed to take into account the Article 8 and Article 6 rights and recited Re B:

‘a biological father ought ordinarily to be able to be heard, if he wishes to be, before major decisions are made.’ And further indicated that the appeal be allowed on each of the grounds.

Blog prepared by paralegal, Kirsty Ward

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