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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.

  1. 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.
  2. 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.
  3. 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.
  4. 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?

  1. 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.
  2. 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.
  3. 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.

 

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Child Sexual Exploitation (Birmingham injunction case)

 

This case, in which Keehan J made wide-ranging injunctions against a number of men who he was satisfied had been involved in grooming children for nefarious purposes, made the news. I have been waiting for the judgment for the following reasons :-

 

1. This remedy, if it stands up, is a better approach than placing victims of child sexual exploitation in secure accommodation (locking up the victim)

2. The precise methodology was not in the press reports, particularly in the use of the inherent jurisdiction not only to protect AB, the subject of the application, but all children under 18.  Is this lawful, and if so, how?

 

[On the latter point, the Inestimable Martin Downs has written persuasively over at the UK Human Rights blog

http://ukhumanrightsblog.com/2014/12/01/inherently-uncertain-is-there-authority-for-that-questions-over-birminghams-grooming-injunctions/

 

particularly on whether  there are difficulties in using the inherent jurisdiction to achieve something for which Parliament has laid down a statutory mechanism for  (albeit one with different tests)  ]

Birmingham City Council v Riaz and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4247.html

 

Here are the injunctions that Keehan J made   (I have italicised the bits that I consider problematic)

From the time this order is served upon X until the date specified in this order X Must Not:

a. contact AB by any means, in person and or through any third person whether by way of face to face contact, telephone (mobile/landline/facetime/skype etc.), text messages, MSM, blackberry, chatrooms, or other social media whether or not such contact is invited in the first instance by AB

b. seek the company or be in the company of AB whether or not invited to do so in the first instance by AB

c. approach AB in any manner, whether in public, on the street or other public areas such as parks, in private addresses open to certain members of the public such as any food outlet, retail outlet, café, public house, bar, hotel, club, nightclub etc, on public transport, in or at any premises associated with a sporting or entertainment activity or in any private residence, whether or not invited to do so in the first instance by AB

d. follow AB in any location public or private

e. approach any female, under the age of 18 years, not previously associated with him on a public highway, common land, wasteland, parkland, playing field, public transport stop/station.

f. pass on details for AB for example name, location, address, telephone numbers at which she can be reached or the names of other persons through whom she can be contacted save as directed by the police or order of the Court.

g. incite, encourage or facilitate the introduction of AB to any other male.

h. incite or encourage any other male to seek any form of contact with AB

i. cause, permit or allow AB or other female previously unknown to him and who may be under the age of 18 years to enter into or remain in any private motor car or taxi in which he is driving or travelling as a passenger.

And is bound by such order until 18th August 2015.

 

There isn’t really much doubt that the High Court has power under the inherent jurisdiction to make all of those injunctions about AB, the subject of the application. The issue is, are the bits in italics stretching the inherent jurisdiction too far?

 

I appreciate that for many readers, their reaction might be the same as mine was initially – they are grown men who shouldn’t be hanging around with teenagers anyway, they should be stopped.

As a matter of morals and ethics, I probably agree. I’m no fan of what these men are said to have done.

Legally speaking though, this is very widely drawn, and is it a proper use of inherent jurisdiction?  Long-time readers might know of my disquiet when judges trot out that old saw about the powers of inherent jurisdiction being theoretically limitless.

 

It is a long and detailed judgment, but the passage that deals with whether there is power to make the order is very short.

  1. The inherent jurisdiction of the High Court “may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy challenge to determine its quality and establish its limits” Jacob, The Inherent Jurisdiction of the Court (1970) Current Legal Problems 23.
  2. The use of the inherent jurisdiction has been substantially curtailed by the provisions of s100 Children Act 1989. A local authority may not apply for any exercise of the court’s inherent jurisdiction with respect to children without the leave of the court: s100 (3) Children Act 1989.
  3. The Family Procedure Rules 2010, PD12D paragraphs 1.1 and 1.2 provide as follows:

    1.1 It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statue. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.

    1.2 The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common: –

    a) orders to restrain publicity;

    b) orders to prevent an undesirable association;

    c) orders relating to medical treatment;

    d) orders to protect abducted children, or children where the case has another substantial foreign element; and

    e) orders for the return of children to and from another state.

  4. In Re M and N (Minors) [1990] 1 All ER 205 at 537, Waite LJ said:

    “the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages”.

  5. I am of the firm view that the use of the inherent jurisdiction to make injunctive orders to prevent CSE strikes at the heart of the parens patriae jurisdiction of the High Court. I am satisfied that none of the statutory or the “self imposed limits” on the exercise of the jurisdiction prevent the court from making the orders sought by the local authority in this case.

 

The Court applied the civil standard of proof here – in fact, as is plain from the judgment, the police were unable to seek prosecutions on this case and the criminal standard of proof would not have been made out.  It might surprise family lawyers, who think that the civil standard of proof was put to bed with Re B, to know that for other civil proceedings the debate rages on.

For serious allegations, and particularly where the consequences are serious, there is authority – Haggar for one, suggesting that the civil standard of proof approaches the criminal standard.

These men have been named and reported in the Press as predatory paedophiles or at least grooming with that sort of end in mind. And on the balance of probabilities rather than that higher test. Is it the right standard of proof, given the serious consequences that must have had for them?

 

Readers may be interested in the judgment as it relates to publicising the men, but that’s outside the scope of my interest for today, and others are better placed to write about it.

 

The “Riaz” route is an option for Local Authorities, and the Judge praised the Local Authority for their hard work and creative thinking. Is it robust? That would probably have to wait for a judgment in a case where the challenge to (a) powers and (b) standard of proof is more vigorously raised.

(Or heaven forbid, a committal application for breach, when the validity of the original order might be tested more fiercely)