High Court Dismisses Local Authority Application To Allow Them To Inform Violent Father Of Care Proceedings Involving His Daughter

In the recent case of A City Council v Mother [2021] EWHC 3375 (Fam) (08 December 2021), the High Court had to rule on an application made by a Local Authority for a final Care Order in respect of a Child (X). This application was not contested by the Child’s parents.

Of particular relevance, the High Court also had to consider an application by the Child’s Mother, who was represented by Katy Swinbourne, Associate in our expert Family Law team, for an injunction preventing the Local Authority from notifying or consulting with the Father concerning any issues relating to X. Previously, the Local Authority had applied for a declaration that it wouldn’t consult with the Father but they now wished to withdraw that application.

The Father, who did not attend the High Court hearing as he was not notified of the proceedings, is named on the Child’s birth certificate and therefore has parental responsibility.

Background

X is a thirteen-year-old girl, who has been diagnosed with having a:

Consequently, X has demonstrated a number of highly dangerous and risky behaviours and it is agreed by all parties that she is beyond the control of her Mother and that it would be in her best interests for a Care Order to be made. The judgment also stated that the Child puts herself in dangerous situations and is at high risk of child sexual exploitation.

When the Child was four weeks old, her Father assaulted X’s Mother, leaving her unconscious. The Father was convicted of assault and received a custodial sentence. X has not seen her Father since the assault took place. Following the assault, the Mother obtained a non-molestation and residence order against the Father.

In 2010, the Mother was served with an “Osman Warning” by the Police as they believed that the Father posed a high risk to the Mother of serious physical harm, which could ultimately result in her death.

In 2012, the Father did attempt to obtain contact with X but was ordered to attend a domestic abuse course before contact could take place. The Father did not attend any such course, so contact did not take place. It was at this point in time that the Mother applied and successfully obtained a Prohibited Steps Order against the Father.

In 2015, the Father was given a sentence of life imprisonment after he assaulted his then partner.

It was for these above reasons, that the Mother had made an application for an injunction which would stop the Local Authority from consulting with the Father about any issues concerning her Daughter.

Care proceedings

At the end of 2020, X was placed into the care of the Local Authority under Section 20 of the Children Act and care proceedings were issued in March 2021.

An Interim Care Order was made on 30 March and as the Father had parental responsibility for X, he automatically became a party to the proceedings. On this day, the Mother applied to the Courts for the Father to be discharged as a party. This was due to the fact that he had not seen X since she was four weeks old and due to the risks he posed to the Mother as a consequence of his serious offending history for offences involving serious violence.

On 22 April, it was determined by Judge Afzal that the Father would remain a party to the proceedings but wouldn’t be given notice of the proceedings or sent any documents. At this time, the Local Authority agreed that it would do some life story work with X, partly in relation to her relationship with her Parents, and a Psychologist (Dr Lynch) was instructed.

The Local Authority confirmed that it would be seeking an order under Section 34(4) and an order under Section 22 of the Children Act 1989 to permit them to dispense with the obligation of keeping the Father informed concerning X’s care. The Local Authority said it was attempting to obtain the Section 34(4) order “in recognition of the fact that it would be inappropriate and potentially dangerous to promote contact between X and her birth father“.

The Mother gave evidence setting out her concerns relating to the Father, both in respect of herself and her daughter. X’s Guardian supported the making of a Care Order and supported that no contact should take place between the Child and her biological Father.

On 9 August, the Local Authority made an application to the Courts under Section 22 which dispensed with the need to inform the Father concerning the legal proceedings concerning the care of X throughout her minority, without a further Order. A final hearing was scheduled to take place on 15 September 2021, however, in August 2021, the Local Authority changed its position on Section 22 and withdrew its application, as it claimed that there was insufficient evidence that the Father posed a risk to X, were he to be notified of the proceedings.

This prompted the Mother to make an injunction application to prevent the Local Authority from consulting the Father in relation to anything concerning X. This was due to the risk he posed to her and her child. The Mother sought a declaration from the Court which absolved the Local Authority of its duties under Section 22 and Section 26.

The Child’s Guardian supported the Mother’s wishes and said that consultation with the Father shouldn’t take place without the consent of the Mother.

In October 2021, the case was transferred to the High Court.

High Court proceedings

The High Court focused on two particular and interlinked issues concerning this case, which was:

A psychological assessment of X had been carried out by Dr Lynch which noted that X expressed a desire to see her Father but wasn’t able to fully grasp the pros and cons of doing so (e.g. the emotional impact of seeing her Father, who was in prison).

In her judgement, Mrs Justice Lieven ruled that despite the Father having prima facie Article 8 rights (he is X’s biological father, is named on her birth certificate, and therefore has parental responsibility), little relevance should be given to this on the facts of the case. The Father has largely, if not entirely, forfeited his right to be involved in his daughter’s life and, as a result, his Article 8 rights in respect of her. This is because:

The Judge added that the removal of the Article 6 rights of the Father in the case was justified by the impact on the Mother’s rights. Additionally, X’s Article 6 rights had been fully protected due to the Guardian’s involvement.

Mrs Justice Lieven went on to comment that:

Whilst the evidence of the risk posed by the Father to the Mother was some time ago, it hasn’t been possible to test this risk since then as it may be that the Father had no reason to threaten or commit violence to the Mother in the years between 2010 and when he was sentenced to life imprisonment.

Given the Father’s history of violence, were he to become aware of the allegations of child sexual exploitation, he might blame the Mother for this and feel encouraged to harm her. Whilst difficult to quantify the risk of harm was it to manifest, it could be significant as the Osman warning, the 2015 assault, and its aftermath clearly demonstrate. Furthermore, even if the Father doesn’t pose any direct risk to X, the physical and emotional harm to the Mother of putting her at risk would in itself impact negatively on X.

In respect of the aforementioned psychological assessment and X’s desire to see her Father, the Judge agreed with Dr Lynch’s overall assessment that X was unlikely to be able to fully consider the emotional and psychological implications of making contact with her Father, on both herself and her Mother and that no contact should take place, not even on an indirect and highly managed basis.

As a result of the above reasons, the Judge made an order that the Local Authority could not consult or inform the Father about any matters concerning X. Should this position change in their view in future years, then the Local Authority will need to make another application to the Court for a variation of the order.

The Judge also made the Care Order, which, as stated previously, was not contested by any of the parties.