Monday, February 24th, 2020
Where Social Services have significant concerns about a child’s welfare and take steps to issue court proceedings to determine who should care for the child on a long-term basis, it may at first glance seem obvious as to who should be involved in the care proceedings. However, whether an individual is simply notified, or granted ‘party status’ may depend on a number of factors. Sometimes, a parent may also have good reason to seek to prevent an individual from being notified and if so, this will require a formal application to be determined by the court. The circumstances affecting who should be a party, who should be simply notified of the proceedings and when the obligation to serve notice should be dispensed with, are dealt with in turn below.
The starting point is that everyone named as a respondent on the application is party to the care proceedings and entitled to a copy of the full application sent to the court. Having ‘party status’ means that an individual is entitled to attend all court hearings and read all of the court papers filed in the proceedings.
Every person whom the applicant believes to have Parental Responsibility for the child, in addition to the child themselves, will be an automatic respondent to the application.
Parental Responsibility is the name given to the rights and duties a person has in respect of a child. The person or persons with Parental Responsibility are able to make all the decisions about a child’s care, such as where they live and who they see, as well as decisions concerning the child’s education and health. Unmarried fathers do not automatically have Parental Responsibility and there a number of ways that it may be acquired.
Therefore, whilst a mother of a child will always be named as a respondent, as mothers are recognised as having Parental Responsibility automatically, this is not true of all fathers. Whether a father is named as a respondent will depend on whether they have Parental Responsibility for the child. If a father does not have Parental Responsibility, then pursuant to paragraph 3.1 of the Family Procedure Rules, Practice Direction 12C, the Local Authority are only under a duty to serve him with notice of the care proceedings and not the full application. The father will then be required to make an application for party status, to be determined by the court. Provided that there is no dispute as to the child’s paternity, these applications are typically granted without difficulty at the first hearing. However, sometimes a situation may arise where a DNA test is first required before the application can be determined.
Whether a non-parent is named as a respondent to the application will again depend on whether they have Parental Responsibility for the child at the time the application was issued. For example, if the child was previously placed in the care of a grandparent under a Special Guardianship Order, then the grandparent would be an automatic respondent to the application, even though they are not a parent.
The Local Authority also has a duty to provide notice only of the application to a number of other non-parents, such as any person who is caring for the child at the time the care proceedings are commenced and any other Local Authority providing accommodation for the child.
What if I don’t want someone to be notified?
If a parent, or other party to the proceedings, does not want an individual who has a right to notice of the proceedings to be notified, then an application to the court is required. This may typically arise in circumstances where there is a history of domestic abuse between the parents and it is considered that the person poses a risk of harm to the family.
When considering the application to dispense with notice, the case of Re CD (Notice of care proceedings to father without parental responsibility)  EWFC 34, provides very helpful guidance on the matter.
HHJ Bellamy identified that the first consideration for the court is whether the father can establish a “family life”, so as to engage his Article 8 right to respect for private and family life, and Article 6 right to a fair trial. The court will consider a number of factors when determining whether a family life is established, including whether there is “evidence of a close personal relationship, a demonstrable interest in and commitment to the child.”
If a family life is not established and protection of the father’s Article 6 & Article 8 rights are not engaged, then it follows that there is a lower threshold for determining that a parent should not be served with notice. However, HHJ Bellamy goes on to conclude that the application must be “…justified on the facts and not in an arbitrary manner. Risk and welfare will be important factors in considering whether to give permission to a local authority not to serve a birth father with notice.”
In essence, the higher the level of risk that the father poses and in cases where the risk is deemed especially hard to manage, the more likely it is that the application to dispense with notice will be granted. However, it is important to be aware that even in the most serious of cases of domestic violence, succeeding on these kinds of application can still be very difficult.
Finally, during the course of the proceedings, there may often be good reason why an individual who did not have party status at the beginning of the proceedings should be joined as a party at a later stage. Reasons for this may include the following;
- If you are a friend or family member caring for the child whilst the proceedings are ongoing
- If the Local Authority’s plan is for you to care for the child on a long-term basis
- If you have been negatively assessed to care for the child on a long-term basis and seek to challenge that assessment in court
- If you are a partner of the parent of the child and either were, or still are, heavily involved in the child’s care and you and your partner seek to be assessed to care for the child together
- If you are one of a number of people who cannot initially be ruled out as having caused the child to suffer a non-accidental injury (in these circumstances, the court may consider it more appropriate for you to ‘intervene’, rather than be joined as a party)
Accessing Specialist Legal Advice
If you think that you may have reason to apply to be joined as a party to care proceedings, or Social Services are involved with your family and you are worried about who may be informed of the proceedings should the Local Authority go to court, please contact Hanne & Co’s Care Department on 020 7228 0017. The Care Department at Hanne & Co has a team of experienced solicitors who specialise in these matters and will be able to advise you based on the specific facts of your case.
Susanne Seaton is a Solicitor in Hanne & Co’s Child Care team
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