Re S (Children: Party Status)
[2022] EWCA Civ 1717
S (A Child), Re
20 June 2023
[2023] EWCA Civ 706
Court of Appeal
A dad wasn't allowed to be part of court case about his son, even though he's the biological father. The higher court said the judge made a mistake – the dad should have been allowed to participate unless there was a really good reason not to. They said the court could make sure everyone is protected by controlling what information the dad sees.
Key Facts
- •Appeal by a biological father (without parental responsibility) against refusal to be joined in care proceedings for his son, S (aged 11).
- •S has physical, emotional, and neurodevelopmental issues.
- •Father is also the paternal uncle of the mother; he is not named on S's birth certificate.
- •Mother left the family home and alleged rape against the father, who has been charged.
- •Care proceedings initiated due to concerns unrelated to the father.
- •Father applied to be joined as a party but was refused by HHJ Wright.
- •Appeal concerned whether the judge applied the correct test for joinder.
Legal Principles
A father without parental responsibility has a presumption in favour of being joined as a party unless there's a justifiable reason to refuse.
Re B (Care Proceedings: Notification of Father without Parental Responsibility) [1999] 2 FLR 408; Re P (Care Proceedings: Father’s Application to be Joined as a Party) [2001] 1 FLR 781
The child's welfare is important but not paramount in joinder decisions.
North Yorkshire County Council v G [1993] 2 FLR 732
There is no requirement for a father without parental responsibility to show an arguable case to be joined.
Re B [1999] 2 FLR 408
The court must consider the parties' Article 6 and 8 rights.
Re CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34 at [29]
Court has extensive case management powers (including disclosure and redaction) to mitigate potential harm from joinder.
FPR 2010 r.4.1(3)(b); Re R (Children: Control of Court Documents) [2021] EWCA Civ 162; Re B (Disclosure to Other Parties) [2001] 2 FLR 1017
Even without parental responsibility, the father is treated under the Children Act 1989 as a legal parent and is entitled as of right to apply for any orders in respect of his child.
Children Act 1989
Outcomes
Appeal allowed.
The judge applied the wrong test, requiring the father to demonstrate an arguable case and justify joinder, rather than the correct test of demonstrating a justifiable reason to refuse joinder. The judge also failed to adequately consider the father's Article 6 and 8 rights and potential mitigations via case management powers.
Father joined as a party.
To avoid further delay for the child.
Remitted to the judge all questions regarding the extent and form of the father’s involvement, including disclosure and redaction of documents.
To allow the judge to address issues of disclosure and participation considering the case management powers.