Should a Local Authority serve notice of proceedings on a father suspected of abusing the mother?

If that title sounds familiar, it is because this was a huge hot-button topic not very long ago, involving a case in which a woman (now named in the public domain as Sammy Woodhouse) complained that a Local Authority was in effect inviting her abuser – who had groomed and abused her as a minor – to have contact with her baby.

I rather stayed out of that story, because there wasn’t a reported judgment to make sure that the newspapers were reporting the case accurately, but if you want the background, the Transparency Project has a good piece on it here

http://www.transparencyproject.org.uk/when-should-i-apply-for-permission-not-to-notify-a-father-about-a-court-case-concerning-his-child/

Lawyers at the time were saying that the Local Authority, according to the Family Procedure Rules 2010 have to serve notice of the proceedings on the father. That’s not inviting him to have contact, or wanting him to be involved in the child’s life, but following the procedure that they have to follow. However, a lot of lawyers also said that in a case of this kind, where the pregnancy was a result of child sexual exploitation, it would have been better to put the issue before the Court and have the Court hear arguments as to why father should NOT be served and make the decision.

This case is not binding authority.  The boundaries about what’s precedent, what’s information as to how a particular Judge dealt with a particular issue in a particular case, what’s obiter and what’s mostly a speech masquerading as a judgment has gotten very blurry in the lifetime of this blog. But this is not a binding authority.

However, it uses wording that makes you think it might be.

P (Notice of care proceedings to father without parental responsibility) [2019] EWFC 13 (11 March 2019)    

http://www.bailii.org/ew/cases/EWFC/HCJ/2019/13.html

1.  In 2018 a local authority obtained a final care order in respect of a teenage girl, Z. In its threshold document the local authority alleged that Z was ‘at high risk of sexual harm as she has previously been groomed and sexually exploited’. Z’s parents accepted that the threshold criteria set by s.31(2) of the Children Act 1989 were met. The local authority sought a final care order based on a care plan of long-term foster care. Z’s parents accepted that that plan was both proportionate and in Z’s best welfare interests. A final care order was made.

2. At the time of those proceedings Z was pregnant. Z’s baby, P, was born in December 2018. The local authority promptly issued care proceedings and obtained an interim care order. The local authority’s interim care plan was that upon discharge from hospital P should be placed with Z in her foster placement. That plan was implemented.
3. This case relates to issues of child sexual exploitation. P’s father is believed to be T. T is more than 10 years older than Z. He is believed to be part of a group of predatory men who have groomed and sexually exploited a number of teenage girls of whom Z is one. He has been prosecuted for offences relating to his sexual relationship with Z and is presently serving a custodial sentence.
4. It is not known what information, if any, T has concerning Z’s pregnancy and P’s birth. He has never had contact with P, either direct or indirect. It is believed that he is not aware of these care proceedings. He does not have parental responsibility for P.
5. The local authority wishes to be relieved of its responsibility to comply with the provisions of Family Procedure Rules 2010 (FPR) Practice Direction (PD)12 §3.1 which provides that, ‘every person whom the applicant believes to be a parent without parental responsibility for the child’ is ‘entitled to receive a copy of Form C6A (Notice of Proceedings/Hearings/Directions Appointment to Non-Parties’.

So quite similar to the Sammy Woodhouse case, although here (probably mindful of the awful press that Rotherham got in that case) the Local Authority asked the Court to decide on whether father should be told about the proceedings.

His Honour Judge Bellamy (sitting as a Deputy High Court Judge) heard the case.

He placed reliance on a previous judgment he had given (again, not binding authority) Re CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34, [2017] 4 WLR 110 (‘ Re CD ’).

And said that as the case had not been overturned on appeal, nor was there any later judgment saying that the decision in Re CD was wrong in law, he felt able to rely on it

My decision was not appealed. So far as I am aware it has not been the subject of criticism in any subsequent case or any academic criticism. In those circumstances I propose to proceed on the basis that the law is as set out in that case

And in conclusion

23.          Against that background what, then, should be the approach of the local authority and the court to the requirements of FPR 2010 PD12C §3.1 in any case involving child sexual exploitation? In such cases, is there a requirement, or at least an expectation, that the local authority should apply to the court for permission not to serve Form C6A on the person believed to be the birth father? Or, to put that another way, is it open to a local authority unilaterally to take the decision to serve Form C6A on a person believed to be the father of a baby born as a result of child sexual exploitation where that person does not have parental responsibility and is believed to be unaware of the care proceedings?

24. It is for the court to decide whether the requirements of FPR 2010 PD12C §3.1 should be disapplied in any particular case. It can only make that decision if the local authority brings the matter before the court by issuing an application for the requirements of FPR 2010 PD12C §3.1 to be disapplied.
25. In my judgment, on a proper reading of the requirements of FPR 2010 PD12C §3.1, it is open to a local authority, without reference to the court, to serve Form C6A on a person believed to be the father of a baby born as a result of child sexual exploitation without reference to the court. The court has no power to impose a requirement that in every case relating to a child born as a result of child sexual exploitation a local authority must apply to disapply the requirement to send a copy of Form C6A to a person believed to be the father of the child. Whether there should be such a requirement is an issue for the Family Procedure Rule Committee and not for the court.
26. However, in my judgment it is open to the court to state clearly that as a matter of good practice there is an expectation that in every care case relating to a child born as a result of child sexual exploitation the relevant local authority should apply to the court for the requirement to send Form C6A to the person believed to be the father of the child to be disapplied. Such an expectation would make it clear that in every such case the decision whether or not Form C6A should be sent to the putative father is a decision of such importance that it should normally be taken by the court and not by the local authority. In my judgment there is such an expectation.

So this case is persuasive for a Local Authority who WANTS the Court to decide whether a father in that situation should be told of the proceedings.  The Court accepted that they could not make it a REQUIREMENT that a Local Authority in these circumstances MUST ask the Court to decide before serving notice, but then goes on to say that it is good practice for a Local Authority to do that, and that the decision is of such importance that it SHOULD NORMALLY be made by the Court and not by the Local Authority.

(I’m not myself sure that the Judge at first instance as a Deputy High Court Judge has sufficient authority to seek to establish good practice beyond the case in question, but to be honest, I think every Local Authority would be rather glad not to find themselves in the same position as Rotherham did with Sammy Woodhouse, so it ends up being a piece of good practice that mothers  and Local Authorities will agree with.  People will want to follow it, even if it isn’t actually authority)

I’m not sure what happens where there’s no conviction and the child sexual exploitation is an allegation yet to be proven, or what happens at final hearing or afterwards if the Court decides the child is to be placed for adoption, but we’ll cross that bridge when we come to it.