Notification to the biological father

Fran Massarella reports on an appeal against an order refusing a mother’s application for permission to dispense with the requirement for the local authority to give notice of the proceedings to the child’s biological father.

The appellant in B (Children), Re [2021] EWCA Civ 1221 was the mother of B, aged nearly 3, and C, aged nearly 5 months. B and C were subject to care proceedings initiated in May 2021 and were in foster care at the time of the appeal. C’s father was party to the proceedings. The mother had asserted that B was conceived with S 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 so as to cause her to fear for her and B’s physical safety if he was made aware of the proceedings.

The previous judge accepted that the mother’s evidence should be taken at face value for the purpose of determining her application and observed that the mother’s relationship with S arose in the context of her employment. The relationship between S and the mother was described as “plainly very nasty, very abusive behaviour of its type.” There was also information from the police that revealed cautions in 2004 and 2008 for assault occasioning actual bodily harm and a public order offence on record against S. Furthermore, there were two child concern notifications in 2020 and a reference of domestic abuse in 2011 relating to S. The Judge at first instance had proceeded on the basis that S had no parental responsibility and no relationship with his daughter and that the evidence showed intimidation, control, and sexual exploitation.

However, other than social media texts from S to the mother making threats towards the mother if his wife were to find out about the pregnancy, there was no other evidential corroboration for the mother’s case. It was held by the appeal Court that the principal motivation of these threats appeared to be to ensure that S’s wife was not alerted to the pregnancy. Nothing had occurred following the threats nor had S made any attempt to contact the mother. The Judge at first instance referred themselves to B’s Article 8 rights and her welfare generally and felt that B was living under a “false prospectus regarding her paternity” which was going to be “difficult to maintain as she would appear to be a child of mixed-race heritage.” Therefore, it was concluded that the risk to B and the mother could be managed and that the application to not notify S should be refused.

The mother advanced two grounds of appeal:

1. The Judge had failed to take into consideration the fact that S had not acquired any Article 8 rights regarding family life with B; and
2. The Judge erred in the balancing exercise he performed because: (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) he had failed to take into account the interference with the Article 8 rights of the mother and the child, and (c) that he had wrongly assessed the level of risk.

Both the local authority and the Guardian sought to uphold the Judge’s decision on appeal and argued that the Judge did not attribute Article 8 rights to S and consequently did not misdirect himself as to the need for a higher exceptionality before dispensing with the need to serve S with notice of proceedings. It was also submitted that the balancing exercise was conducted correctly, and the determination reached was reasonable in all circumstances.

At [18], the case of Re A Local Authority v B (Dispensing with Service) [2020] EWHC 274 was cited, where it was held that ‘where a parent has parental responsibility or a right to respect for family life, a high degree of exceptionality must be demonstrated by strong countervailing factors to justify their exclusion from participation in proceedings’ but that ‘exceptionality is not in itself a test or a shortcut and a fair balance must be struck between the factors that are present in the individual case.’

The case of Re X (a Child) (Care Proceedings: Notice to Father without Parental Responsibility) [2017] 4 WLR 110 was also referenced at [21], where it was concluded that for the children involved in cases such as this one it is important that attempts are made to engage with the birth father and perhaps also his wider family as it will normally be in the interests of the child for their birth father to be informed of their existence and given the opportunity to participate in proceedings. However, it was also held that the child and the mother should not be put at risk of harm as a result of seeking to engage the father in proceedings and that it was a matter of balance.

At [25] the Court concluded that the Judge was entitled to view the nature of the threats in terms of the context in which the threats were made, the terms that were used, the motive behind them and the absence of any subsequent behaviour. The mother’s Article 8 rights were not ignored but the reality was that those family ties were already the subject of state intervention. The Court’s ultimate determination was whether the care order which the local authority sought was a proportionate response to the circumstances affecting B and C. B’s prospective family ties in the circumstances of her knowledge of her paternity and mixed heritage called for greater regard and were key factors for attempting to engage S in proceedings.

The appeal was accordingly dismissed.

Francesca Massarella is due to begin pupillage at Spire Barristers in September 2021.