Dispensing with notice to father

An increasingly common issue before the Family Court is whether a local authority can be relieved of its duty to notify or consult a father with parental responsibility in care or related proceedings. The issue, often arising in the context of serious safeguarding concerns, demands a finely balanced analysis of ECHR rights, statutory obligations, and the doctrine of exceptionality. Recent authorities highlight the complexity of such decisions.

In A City Council v Mother [2021] EWHC 3375 (Fam), Lieven J granted an injunction under the inherent jurisdiction restraining a local authority from consulting a father who posed an extreme threat of violence. The court held that the father’s Article 8 rights were minimal given his lack of involvement in the child’s life and the risks presented. From §20 – 27 the judge sets out the duties of a local authority to consult with the parents of a child in their care are set out in sections 22 and 26 of the Children Act. At [§23] Lieven J notes that the High Court may make ‘a wide range of injunctions for the child’s protection’ under the inherent jurisdiction (per paragraph 1.3 of Practice Direction 12D of the Family Procedure Rules). The decision of Knowles J in Re X and Y (Children) [2018] 2 FLR 947 was considered by the learned judge, and the following passage bears repetition [§26 of Lieven J’s decision]:

“52. The breadth of section 26 of the Act was described by Hayden J in these terms [ Re O (A Child) [2015] EWCA Civ 1169]: “[27] … The objective of the process here is to ensure not only that there is proper planning but that the plan for the child continues to be the correct one, developing and evolving as the child’s needs change. It is to fortify the rigour of review that the section imposes a wide-ranging duty to consult, not least with the parents. Even a parent who has behaved egregiously may nonetheless have some important contribution to make in the future. The requirement to solicit the views of a parent is not contingent upon a moral judgement of parental behaviour; it is there to promote the paramount objective of the statute as a whole, i.e. the welfare of the child. These duties are a statutory recognition of the need appropriately to fetter the corporate parent…” I accept that analysis and note that Hayden J agreed that a local authority could only be absolved from its duty to consult and to provide information to a parent in ” exceptional circumstances “, approving the judgment of Coleridge J in Re C (Care: Consultation With Parents Not In Child’s Best Interests) [2005] EWHC 3390 (Fam), [2006] 1 FLR 787 [see paragraphs 28 and 29 of Re O].”

Similarly, in Re B [2020] EWHC 2741 (Fam), MacDonald J examined the legal framework under FPR 2010 r 6.36, which allows the court to dispense with service of documents. The judgment reaffirmed that the default position is that a parent with parental responsibility is a respondent under FPR r 12.8 and entitled to notice. However, this requirement may be disapplied in “highly exceptional circumstances,” a phrase rooted in earlier cases such as Re X (Care: Notice of Proceedings) [1996] 1 FLR 186 and A Local Authority v M and F [2010] 1 FLR 1355. The principle of proportionality is central. The court must begin with the assumption of full participation, consider partial participation (such as redacted disclosure), and reserve total exclusion for situations where lesser measures cannot mitigate the risks. This graduated approach is reinforced in Re A (Father: Knowledge of Child’s Birth) [2011] 2 FLR 123, where the Court of Appeal stressed the need for a rigorous evaluation of the harm feared and its likelihood.

The issue was further refined in A, B and C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 41, where the Court observed that while confidentiality is “highly exceptional,” it must be weighed on a case-by-case basis. Peter Jackson LJ cautioned that “exceptionality” is not a legal test, but a reflection of the balancing exercise required between competing rights and the seriousness of the decisions involved. At [§89] he said this:

“It has rightly been said that the maintenance of confidentiality is exceptional, and highly exceptional where a father has parental responsibility or where there is family life under Article 8. However exceptionality is not in itself a test or a short cut; rather it is a reflection of the fact that the profound significance of adoption for the child and considerations of fairness to others means that the balance will often fall in favour of notification. But the decision on whether confidentiality should be maintained can only be made by striking a fair balance between the factors that are present in the individual case.”

Strasbourg jurisprudence places a high bar on exclusion from proceedings. As highlighted in Ashingdane v United Kingdom (1985) 7 EHRR 528, any restriction on Article 6 rights must be proportionate and must not impair the essence of the right to a fair trial. In cases where both Article 6 and Article 8 rights are engaged, courts must also account for procedural fairness and the overarching need for transparency in public law proceedings.

For legal practitioners, particularly those representing local authorities or vulnerable parents, it is critical to understand the evidentiary threshold and procedural safeguards surrounding these applications. Courts are rightly vigilant about the erosion of parental rights under the pretext of safeguarding but remain empowered to act decisively where credible, well-evidenced risks to life, safety, or well-being are demonstrated. We must not shy away from making these difficult applications where there is a demonstrable level of harm feared by a vulnerable parent who we represent. Indeed, their instructions as to how this person has treated them, or how that treatment has made them feel, may be the only “indicator” available when considering whether to make an application to relieve a local authority of its obligation to serve notice of proceedings on a father.

Sometimes these applications are met with some surprise – by other respondents, and indeed some tribunals. You may, as I have done, even feel singled out as being slightly ‘off the wall’, but such applications are, rightly in my view, allowed; and, in the right circumstances they should be. It is important to highlight to the court, when instructed to make an application, that there is no requirement that a significant physical risk be demonstrated. Harm and risk comes in many guises, and it may, in the specific circumstances of your client’s case, be an entirely justified and proportionate application to make. This, to me, stands to reason and chimes with our improved understanding, as a profession, about the broad spectrum and impacts of domestic abuse in all of its forms. Do always ensure that a detailed statement is prepared to support an application, addressing the factors set out by Peter Jackson LJ in A, B and C to clarify precisely the nature of harm and the gravity of feared harm.

The frequency of such applications has, in my experience, increased; more than a handful in the last 6 months. One principle remains constant when considering making them: in matters of exclusion, the Family Court must exercise its discretion with the utmost caution, guided by a strong evidential basis and an unwavering commitment to proportionality. These factors must be carefully and fully drawn to the Court’s attention, as the possible impact of exclusion from proceedings has significant implications not just for the person excluded, but also the subject child. On a concluding note, you will see when considering the authorities, that such an application is not determining a question with respect to the upbringing of the child so the welfare of the child, whilst an important consideration, is not paramount.

Daniel Sheridan is a barrister at Harcourt Chambers. This article also appears on his LinkedIn account.