Court of Appeal makes “unusual order” allowing appeal over refusal to make person party to care proceedings

The Court of Appeal has allowed an appeal over a Family Court judge’s refusal of an application by an appellant non-relative, Mr B, to become a party to care proceedings.

In the ‘unusual’ ruling in S, Re (Children: Party Status) [2022] EWCA Civ 1717, Lord Justice Peter Jackson, with whom Lady Justice Nicola Davies and Lord Justice Moylan agreed, said that the features which justified the decision to allow the appeal were that the appellant was a non-relative who had been a “constant presence in the child's life” and was an “approved carer from whom the child was removed without apparent due process”.

Outlining the background to the case, Lord Justice Peter Jackson noted that Mr B had met the respondent mother in 2014. They cohabited briefly and separated. Soon afterward, the mother became pregnant with C.

Mr B is not C's father. Mr B and the mother began to live together again. He supported her during the pregnancy and was present at C's birth.

They all lived in Mr B's home until 2020, and during this time Mr B was involved in C's care and a “close bond developed between them”, the Court of Appeal judge said.  

In September 2021, the mother gave birth to D, who is C's half-brother. In April 2022, she was detained under section 3 of the Mental Health Act 1983. Before being taken to hospital with D, Peter Jackson LJ noted that she asked for C to be cared for by Mr B.

The Court heard that Mr B was then formally assessed by the local authority as a "connected person" under regulation 24 of the Care Planning Regulations 2010, which led to a positive assessment on 20 April 2022.

A special guardianship assessment was carried out which found that: "C presented as content in Mr B's care and a positive relationship was observed. If C was unable to return to his mother's care I expect he would wish to remain in Mr B's care as this was familiar and predictable."

"Mr B has been observed to communicate well with C, offering lots of warmth and support to engage with workers during home visits. Mr B describes that he has been the only father figure to C for the duration of his life thus far, identifying himself as C's 'psychological' father…"

Despite these reports, C was taken into foster care on in August 2022 after a hearing of which Mr B was given no notice, Lord Justice Peter Jackson said.

The local authority considered that it had obtained further information during the special guardianship assessment that justified asking the court to amend C's interim care plan so that he was placed in foster care, separately from D.

The information included an account from Mr B's ex-wife, a single allegation of assault made by the mother, and information about Mr B's criminal history from the PNC, the judge revealed.

A Circuit Judge approved the change in the care plan. No provision was included in the order for Mr B to be heard, or even served.

On 18 August 2022, Mr B made an application to be joined as a party to the care proceedings, which was dismissed by Recorder Evans on 30 September 2022.

In his judgment, he said: […] “it is not necessary for Mr B to be a party or an intervenor for him to file a statement challenging the special guardianship assessment. He can do that so that such information as he wishes to put forward is before the court and with the local authority. There is no other legitimate role in these proceedings put forward by Mr B justifying his application. Considering the special guardianship assessment, and the evidence that is before me, I share the local authority and the guardian's concerns about the concerns it raises, and it does seem to me to be evidence which would inevitably cause any application for leave by Mr B to make a section 8 application to be refused.

“In those circumstances, there is no role for him to play in these proceedings and his application to be joined as a party must be dismissed. I do acknowledge he has a right, as I have said, to challenge the special guardianship assessment and the appropriate way to do that would be either to apply for an independent assessment or to file a statement or both, but he can take those steps without any order, and it does not seem to me to be appropriate for me to make any such order."

Mr B sought permission to appeal, which Lord Justice Peter Jackson granted on 2 December 2022.

The judge noted that counsel for Mr B had made it clear that the appellant had “no intention of competing with the mother” but wanted to put his case before the Family Court “in case she is unable to resume care of C”.

In that event, he would seek to be C's carer, either as his special guardian or under a lives-with order; and in any case, he would seek more contact.

The four grounds of appeal submitted to the court were as follows:

1. The recorder failed to properly consider and assess the factors in s. 10(9) Children Act 1989 and failed to assess whether Mr B had an arguable case.
2. The determination was unfair in that it gave Mr B no opportunity to challenge the reasons behind C's removal or to put his case at any stage.
3. The recorder was wrong to exclude Mr B when there was no basis in evidence for doing so - the only evidence was that filed by the local authority, Mr B not having had the opportunity to file a statement himself.
4. The recorder placed too much weight on alternative options that were available to Mr B to put his case.

The judge heard several arguments in opposition to the appeal, which included one submitted by counsel for the respondent children, who observed that if the hearing in August 2022 “had been approached differently, matters might not have reached the stage where Mr B needed to apply for party status.”

She continued: “However, it would be going too far to make him a party now. He should wait until the question of the mother's ability to regain care of C had been decided and at that stage it might be appropriate for his claim to be considered.”

Lord Justice Peter Jackson said the first difficulty with the order under appeal was that the recorder could not legitimately determine on the basis of the available information that any application made by Mr B would inevitably fail and that there was therefore no role for him to play in proceedings. “The court's task at that point was (to borrow a turn of phrase from Re W [2016] EWCA Civ 793 at para. 70) to decide whether his case was broadly 'a runner', not whether it was 'a winner'.”

The Court of Appeal judge said the salient features that should have led the court to grant the application were these:

(1) The importance for C of his relationship with Mr B, particularly in the light of his special needs.

(2) The lack of any similarly important adult relationship, apart from with his mother.

(3) The relatively moderate gravity of the unproven allegations made against Mr B.

(4) The requirements of natural justice in the peculiar circumstances of C's removal from his approved interim carer.

(5) The benefit to the court in having all realistic options before it for C's sake.

(6) The inability of Mr B to participate effectively without party status in circumstances where all parties had dismissed his case.

(7) The need to avoid delay.

Lord Justice Peter Jackson said: “Seen with the assistance of s.10(9), the recorder should have identified (a) that the nature of the proposed intervention was appropriate to the circumstances, whether or not it would ultimately be successful, (b) that the applicant had an unusually strong connection with the child for someone who is not a relative, and (c) that there was no significant risk of intervention harming the child.

“It is undoubtedly the case that Mr B is ‘second best to an actual parent’ but that did not make his case unworthy of consideration. As to (d), the local authority's plan had abruptly changed and its presentation could in certain respects be considered tendentious, while the mother had, at least ostensibly, also changed her position towards Mr B after years of reliance on him.”

He continued: “Had the recorder considered these matters squarely, he would in my view have been bound to conclude that Mr B had an arguable case sufficient to satisfy the test for joinder.”

Peter Jackson LJ noted that a “second difficulty” was that the options identified by the recorder did not seem “consistent with his substantive decision”.

He said: “Having found that Mr B had no legitimate role to play in the proceedings, the recorder stated at paras 18-19 that he had a right to challenge the assessment and that he could apply to file a statement or to obtain an independent assessment or both. However, he did not explain how that could happen or why his main conclusion would not inevitably be fatal to any such attempt. Further, if this was a meaningful right, the court should have addressed it there and then and given any necessary directions.”

The Court of Appeal judge rejected the respondents’ various arguments, noting that the fact that an intervention would add complexity to C's proceedings was “unconvincing” and that any added complexity would in any case be “no more than a reflection of his life story".

Lord Justice Peter Jackson allowed Mr B’s appeal, who is now joined as party to the care proceedings as the ‘Fifth Respondent’.

The judge said in his final comments that the outcome of the appeal was “particular to its facts”, noting: “as the recorder observed, it will be unusual for a potential special guardian to become a party to proceedings”.

However, he added: “The features that justify it here are that the Appellant is a non-relative who has been a constant presence in the child's life and was an approved carer from whom the child was removed without apparent due process.”

Lottie Winson