1. As public law practitioners we are rarely tasked with really delving into the law relating to fathers without parental responsibility. It is common knowledge (although not necessarily logical) that a father without PR is not an automatic party to proceedings involving his child.  They are, however, entitled to be given notice of the proceedings and if they wish to be involved are invited to make an application for joinder which is usually granted without opposition.

2. What happens, then, when the other parties object to your client – the undisputed biological father of the child – being joined as a party to proceedings? Until very recently (June 2023 to be exact) you’d have been digging out case law from the early 2000s.  Helpfully, the Court of Appeal has now summarised, confirmed and updated the law in this neat judgment.  The Court confirmed that fathers without PR occupy a much more advantageous position than others seeking to be involved in proceedings.  The judgment also highlights the tension between their not automatically being a party but being able as of right to make other applications (for example, for a CAO) or, if the child is in care, the duty on the LA to facilitate “reasonable” contact under s.34 CA 1989.

The Facts

3. The child, S, was 11 years old at the time of the hearing. His mother was 17 years old when he was conceived and his father was his mother’s paternal uncle, with whom she was living at the time of conception.  They were obviously not married and the father also did not appear on S’s birth certificate.  S believed him to be his uncle.  Mother, father and S lived together as a “family” until December 2019, when the mother left the home with S and moved to a different part of the country, making allegations of domestic abuse against the father.  Care proceedings were issued in 2022 for reasons unrelated to the father, who was given notice of the same and swiftly made an application to be joined as a party.  The Judge at first instance refused this application, as she was invited to do by all of the other parties.  The father appealed this decision and the question for the Court was not whether the Judge “went beyond the wide discretion afforded to judges in relation to such case management decisions, but whether [she] applied correctly the principles underpinning the decision she had to make.”

The Law

4. The judgment confirms the ‘long settled’ law relating to applications made by biological fathers under FPR 2010 12.3(a), which provides that the court ‘may at any time direct that any person or body be made a party to proceedings.’

5. There is no guidance in the legislation as to what the Court must take into consideration when considering an application under FPR 12.3, but the overriding objective [FPR 2010 1.1] obviously applies. The judgment helpfully summarises the existing, uncontroversial law with some ‘guiding principles’ (emphasis added):

1. 1. The child’s welfare is important but not paramount: North Yorkshire County Council v G [1993] 2 FLR 732.
   2. 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: Re B (Care Proceedings: Notification of Father without Parental Responsibility) [1999] 2 FLR 408 (‘Re B’); Re P (Care Proceedings: Father’s Application to be Joined as a Party) [2001] 1 FLR 781 (‘Re P’).
   3. There is no requirement for a father without parental responsibility to show ‘an arguable case’ or even to have a specific application to make. Holman J said in Re B [p 413] “So joining the father as a party does not really depend upon the existence of ‘an arguable case’ at all. The father may not have any particular application that he wishes to make, but nevertheless in my judgment, ought ordinarily to be able to be heard, if he wishes to be, before major decisions are made.”
   4. What amounts to a ‘justifiable reason’ to rebut the presumption in favour of a father being joined as a party is a matter for the discretion of the judge having considered and put into the balance all relevant matters.
   5. There is no requirement to consider the factors in s.10(9) CA 1989 which relates to the joinder of persons in relation to section 8 Children Act 1989 private law proceedings.
   6. The court must consider the parties’ Article 6 and 8 rights, including those matters set out in Re CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34 at [29] (‘Re CD’) which are:

1. 1. 1. the determination of whether family life exists is essentially a question of fact;
      2. family life is not confined solely to marriage-based relationships; however,
      3. mere biological kinship is not of itself sufficient to constitute family life;
      4. cohabitation, though not a pre-requisite, is an important factor to be taken into account when considering the existence or otherwise of family life; however,
      5. other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto family life;
      6. there must be evidence of a close personal relationship, a demonstrable interest in and commitment to the child.”

6. In Re S the Judge at first instance had effectively reversed the presumption (ii, above) by requiring F to demonstrate that he had an “arguable case” – the test which is applied to others seeking to become parties to proceedings. The Court emphatically stated that this was incorrect, again confirming the unique position occupied by fathers.  The Judge also erroneously concluded that the father had no Art 8 (and therefore Art 6) rights.

7. In addition to confirming the existing law, the judgment highlights in particular the issue of proportionality. If a Court is considering the draconian step of refusing to allow a father to participate in care proceedings involving his child because of a risk to one of the other parties, they must consider whether there is any possible mitigation by way of general case management powers and participation directions for the protection of vulnerable parties.  The Court also considered the power to restrict the disclosure of documents to (in this case) the father and approved this as “strictly necessary” if the alternative is to deprive a father of the right to be joined to care proceedings.

Conclusion

8. If, then, you are in this situation it will be important to, first, give your client realistic advice as to possible restrictions on their participation (and, if possible, get their agreement for the same) and then consider the specific concerns raise by the other parties and match them to the comprehensive and wide ranging powers available to the Court. Think about things like:
   1. are there concerns about physical threat? Remote attendance at hearings can be suggested (for one or more parties) – particularly interim hearings – as well as the “usual” participation directions for vulnerable witnesses (screens, separate waiting rooms etc);
   2. does your client need personal information about the mother? Could this be redacted?  This not only encompasses details like addresses/schools etc but personal information given in the course of assessments unless it is directly relevant to the circumstances of the child.  In Re S the parties agreed that the father would only have information about the child, his circumstances and welfare;
   3. concerns about onward disclosure? Documents can be made available at solicitors’ offices and not sent to the client.

9.  The appeal by the father in this case succeeded. He was joined as a party to the proceedings, with decisions about his participation and disclosure to be dealt with by the Court below.  As the Court pointed out, the starting and finishing point in cases such as this is usually the presumption of the father being granted party status.  Although the Court made clear that the Judge has a wide discretion in deciding what amounts to a ‘justifiable reason’ to exclude fathers without PR from care proceedings, as practitioners we can expect fewer situations where a Judge concludes that risk to another party is such a reason.  Any judgment which does not explicitly consider proportionality and the Court’s wide ranging case management powers will certainly be vulnerable to challenge.

Jennifer Swan acted for the Appellant. The judgment is available to view here.