Biological father without parental responsibility wins appeal over being party to care proceedings

The Court of Appeal has allowed an appeal on all three grounds brought by a father against a judge's decision to refuse his application to be joined as a party to care proceedings in relation to his biological son.

In S (A Child) [2023] EWCA Civ 706, Lady Justice King concluded that HHJ Wright “failed to take into account the Article 8 and Article 6 rights of the father”, and that she was in error to hold “not only that the father had to establish a 'good arguable case' but that 'there should be a justifiable reason for joinder'.”

The appeal concerned S, aged 11, who has a number of physical, emotional and neurodevelopmental issues.

Lady Justice King noted that S was born as a consequence of a consanguineous relationship between the mother and the father, as whilst the father is S's biological father, he is also the paternal uncle of the mother.

The father is not named on S's birth certificate and does not have parental responsibility for him. S believes that the father is his uncle, Lady Justice King added.

S's mother was the Second Respondent. In December 2019, after a little over 8 years of the mother, father and S living as a family, the mother left the family home and moved to a different part of the country.

Lady Justice King said: “At the same time, she made allegations of rape against the father to the police, including an allegation that S was conceived following rape”.

The father has now been charged with two counts of rape and one of sexual assault.

In August 2022, S was made the subject of a child protection plan under the category of neglect. On 26 October 2022, the local authority issued care proceedings.

The father was given notice of the proceedings in November 2022 and made an application to be joined as a party “as soon as was practical” on 2 December 2022, said Lady Justice King.

On 20 February 2023, HHJ Wright refused the father’s application to be joined as a party to care proceedings. His application was opposed by the local authority, the mother and the Children's Guardian.

Dismissing the application, HHJ Wright said: “I have determined it is not appropriate to permit [the father] to be joined as a party to these proceedings. The father has no part to play in these proceedings. The local authority will give him appropriate information as to [S's] welfare. It is justifiable, given the concerns that have been raised both on behalf of S but also on behalf of the mother and the local authority that [the father] should not be joined to these proceedings."

The father was granted permission on 2 May 2023 to appeal the judge's decision on the following grounds:

i) The judge applied the incorrect test for joinder to care proceedings of a father without parental responsibility in that she:

a) wrongly considered that she 'must consider the father's prospect of success' and 'must have some kind of arguable case'.

b) 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.

ii) The judge failed to have proper regard to the father's Article 8 rights and his wish to have an input in the proceedings.

iii) When considering whether there was a 'justifiable reason' to refuse the application, the judge failed to assess the necessity and proportionality of excluding the father or to consider whether steps could be taken to mitigate the potential impact of joinder on the mother and S.

Outlining the relevant legal framework, Lady Justice King said: “Under r.12.3(2) of the Family Procedure Rules 2010 ('FPR 2010'), an applicant has an automatic right to be made a party to proceedings if he or she has parental responsibility for the child concerned. Since the father does not have parental responsibility, the application is made under r.12.3(3)(a) FPR 2010, which provides that the court 'may at any time direct that any person or body be made a party to proceedings.'”

She noted that there are a number of guiding principles set out in the authorities, including that “Where a father without parental responsibility applies to be joined as a party to care proceedings concerning the child, there is a presumption in favour of granting the application unless there is a 'justifiable reason' for refusing it”.

Further, there is “no requirement for a father without parental responsibility to show 'an arguable case' or even to have a specific application to make.”

Addressing HHJ Wright’s decision on 20 February in more detail, the Court of Appeal judge noted that “the focus of her analysis was the impact that allowing the father's application would have upon the mother and her view that the father had to justify being joined to the proceedings in circumstances where, in the judge's view, he had no case to put and was not involved in the issues which related to the threshold criteria”.

She added: “The judge said that she had considered the father's right to a fair trial but concluded that he had 'no family life with [S] and [S's] mother considers [the father] to pose a significant risk to herself and [S]'.”

Lady Justice King noted that neither the local authority nor the children's guardian oppose the appeal. However, the mother maintained her opposition to the father being joined as a party.

Neil Johnstone, counsel for the mother, conceded that the appeal must be allowed on Ground 1 (a) and (b).

Lady Justice King said: “The main plank of Mr Johnstone's submissions was that the judge initially directed herself correctly on the law and, 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 a proper reading of the judgment as a whole it could be seen, he submitted, that she had in fact applied the correct test.”

She added: “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 had therefore found there to be a 'justifiable reason' not to join the father. She had been entitled to reach this conclusion, submitted Mr Johnstone, taking into account in particular the distress the involvement of the father would cause to the mother, together with the necessity for her to be able to be involved in the proceedings, to participate in assessments and to be open and honest with professionals.”

However, Lady Justice King said that Mr Johnstone’s argument was “not sustainable”. She said: “The judge's decision appeared to be coloured by the nature of the relationship between the father and the mother and the fact that the events upon which the threshold criteria relied had occurred long after the parties had separated.

“These concerns, however important they may be to the overall picture, do not mean that a biological father, particularly one with Article 8 and therefore Article 6 rights, should have to justify why he should be joined as a party to care proceedings relating to his child.”

Additionally, Lady Justice King said: “The judge further said that the father 'has nothing to contribute; and [the father's] limited family life in relation to S; he has no family life with S.' In my judgement, upon a proper application of the general principles as enumerated in Re CD, this father had undoubtedly established family life as is now conceded by both the local authority and the children's guardian.”

She added: “Whatever the nature of the relationship as between the mother and father, they had lived together as a family with S for over 8 years before the separation. Further, although the father had not had contact with S following the mother's relocation, he made his application to be joined to these proceedings within weeks of being given notice of them.”

Lady Justice King noted that the father's Article 8 rights having been established, it followed that he also had an Article 6 right to a fair trial. “Such a right incorporates, in relation to a biological father without parental responsibility, a presumption that he will be entitled to be joined as a party to care proceedings”, she said.

Concluding her decision, Lady Justice King said: “The judge therefore, in my judgement, failed to take into account the Article 8 and Article 6 rights of the father. The heart of her error, however, was that she held not only that the father had to establish a 'good arguable case' but that 'there should be a justifiable reason for joinder'. This approach unfortunately infected her overall analysis.

“The judge also held that the father had 'no case to put' and had 'nothing to contribute to the proceedings' but, with respect to the judge, that is to miss the point because, as Holman J said in Re B, a biological father 'ought ordinarily to be able to be heard, if he wishes to be, before major decisions are made'.”

Lady Justice King added: “It may be that, had the judge been asked to consider possible mitigations as part of her decision making process, she would have maintained her initial, entirely correct, legal analysis rather than her understandable concern for the mother and the potential impact upon her of the father becoming a party becoming the sole focus of her analysis, resulting in the father having to justify being a party in the care proceedings relating to his child.”

Lady Justice King allowed the appeal on all grounds. She joined the father as a party and remitted to the judge at the Issues Resolution Hearing “all questions as to the extent and form of the father's involvement in the proceedings including the disclosure and redaction of documents”.

Lady Justice Asplin and Lord Justice Baker agreed.

Lottie Winson