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Removing a party to proceedings: A Local Authority v F and others

Date:27 MAR 2018
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Family analysis: Following A Local Authority v F and others [2018] EWHC 451 (Fam), [2018] All ER (D) 68 (Mar) Gemma Taylor QC, of 42 Bedford Row Chambers, explains the circumstances under which a local authority can be absolved of its duties to consult with a parent and provide information.

What are the practical implications of this case?

The decision in A Local Authority v F and others highlights that in any application to remove a party to proceedings, to limit disclosure to a party and to absolve the local authority from its statutory obligation to consult them, however grave the circumstances, that party must be given notice of the application and have some idea of the case against them.

As a preliminary consideration in such circumstances, the court should decide what documents should be disclosed to that party. The court in A Local Authority v F and others exercised its case management powers under the Family Procedure Rules 2010 (FPR 2010) 4.1, so that the parents were served with redacted applications and a covering letter. Once the father had responded in writing to the court, a redacted bundle was served on him. The decision also highlights that disputes about the ambit of disclosure should be framed in terms of the need to identify, evaluate and weigh the various European Convention on Human Rights (ECHR) rights that are in play. In this case, ECHR Arts 6 (right to a fair trial) and 8 (right to respect for private and family life) rights were engaged.
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What was the background?

The court was concerned with two children who had suffered extensive and sadistic abuse before being removed into care. Their father was convicted of sexual abuse, was subject to a sexual offences prevention order and was to play no further role in the children’s lives. The children were extremely vulnerable. The evidence indicated that anything associated with their father triggered very adverse and extreme responses, and led to a significant deterioration in their fragile mental health.

The local authority applied to remove the father as a party to its application to revoke placement orders, and concerning contact under s 34(4) of the Children Act 1989 (ChA 1989). It also sought declarations under the inherent jurisdiction that it be absolved from any statutory obligation under ChA 1989, ss 22 and 26, to consult the father about the children and that, in the exceptional circumstances of the case, its failure to consult him was reasonable pursuant to ChA 1989, s 84.

The relevant law is that the court may remove a person as party to placement order proceedings pursuant to FPR 2010, 14.3(3), and to proceedings under ChA 1989, s 84 pursuant to FPR 2010, 12.3(3). There is no guidance in the FPR 2010 or in ChA 1989 about the factors to take into account. In her judgment, Knowles J referred to Re W (Discharge of Party to Proceedings) [1997] 1 FLR 128, which she said should now be read in the light of ECHR rights, and that the competing Art 6 and 8 rights of the father and children had to be considered (paras [39] and [40]).

Also relevant was that a local authority has a statutory duty, pursuant to ChA 1989, ss 22 and 26, to consult with a parent. ChA 1989, s 84 sets out the consequences for a local authority if it does not fulfil its duties. Declarations that absolve the local authority from its duties can only be made under the inherent jurisdiction if leave is granted pursuant to ChA 1989, s 100(4).

The issue of absolving a local authority from its duties was considered in Re O (A Child) [2015] EWCA Civ 1169, [2015] All ER (D) 216 (Nov) and Re C (Care: Consultation with Parents Not in Child’s Best Interests) [2005] EWHC 3390 (Fam), [2006] 2 FLR 787. In making its decision, the court also considered Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, [2001] All ER (D) 22 (Aug). The general approach is that there must be exceptional circumstances for a local authority to be absolved of its duties to consult and provide information, and an application that a party should not be given notice of any future application can only be made under the inherent jurisdiction.

What did the court decide?

The court determined that disclosure of documents to the father should be limited to provide him with sufficient material to know the case made against him, and made its decision taking into account the material that had been disclosed to the father in the edited bundle (para [36] of the judgment). Further that:
  • the harm that would occur from the father’s participation in proceedings was so grave that the children’s right to privacy should prevail over any ECHR rights held by him (para [48]).
  • there be leave to apply for declaratory relief and declarations that absolved the local authority from providing the father with information about the children and consulting him, save for information about life-threatening medical emergencies (para [57]).
Regarding the application for a declaration that the father should play no role in any future proceedings, the court found that that would be too wide and disproportionate—instead the court made a declaration permitting the local authority not to serve the father with notice of any application, pending an application to the relevant court for without notice directions as to the father’s role in the proceedings and his access to documents (para [64]).

Gemma Taylor QC is a leading specialist in public law care and adoption proceedings. She has particular expertise in the most difficult cases that involve complex medical evidence and serious injuries. She is a member of the Family Law Bar Association and the Association of Lawyers for Children. In A Local Authority v F and others, Gemma was instructed by Shah Amin of Bosley and Co for the respondent children.

Interviewed by Kate Beaumont.

This analysis was originally published on LexisPSL Family (subscription required). Click here to request a free 1-week trial