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LA v XYZ (Restriction on Father's Role in Proceedings) [2019] EWHC 2166 (Fam)

Four applications by a Local Authority regarding a child whose father had killed her mother. The applications sought were a care order for the child, permission to refuse contact between the child and her father pursuant to Section 34 (4), relief of duties under Section 22 CA 1989 to the father regarding the child and to discharge the father as a party to the care order and the Section 34 (4) applications.

1. This case involves the child Z, who was at home when her mother was murdered there by her father. He was convicted and sentenced to life imprisonment. The Local Authority applied for a care order for Z and sought the father's to be removed as a party to that application. The Local Authority also applied pursuant to Section 34(4) of the Children Act 1989 for permission to refuse contact between Z and her father and for the court to exercise its inherent jurisdiction to declare that the Local Authority did not need to comply with its statutory duty under section 22 CA 1989, to consult the father about or give him notice of any future decisions relating to Z.

2. The Guardian supported the LA position and reported that Z had said she wanted no further indirect or direct contact with her father and did not want him to have any further knowledge about her.

3. The father argued that he did not wish to cause harm to Z, but simply wanted to participate in proceedings. He could not interfere in his daughter's life as he did not know where she was living. He would accept continued redaction of documents to maintain that anonymity.

4. The court decided to grant the LA's applications. It is clear that such orders are 'exceptional' but in this case were necessary; having conducted an analysis of the various considerations the court was clear that the father's continued involvement in these proceedings was 'deeply harmful to Z.'

5. The court considered the general legal framework about restricting disclosure of documents and discharging a party to family proceedings, together with some important practical considerations when making such applications. It is important that issues around limiting or extinguishing someone's Article 6 rights, should be considered as soon as possible. If such an exceptional application is made, it should set out the terms of order sought and evidence must then be provided to set out the evidential foundation for why such an order is necessary. It may be necessary to re-allocate the case to the High Court.

6. Part 12 FPR 2010 sets out who should be an automatic party to proceedings and who should be given notice of any application. A father with parental responsibility is an automatic respondent to care proceedings while PD 12A sets out that the LA should inform fathers who do not have PR about the application for a care order.

7. It was uncontroversial that the court has case management powers under rule 4.1 and 12.2 FPR 2010 to restrict a party's access to material filed within proceedings. But this is an 'exceptional' course of action. As the former President of the Family Division Sir James Munby commented in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017

… such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny.

8. With regard to exercise of the inherent jurisdiction, the court referred to the 'extremely helpful analysis' by Knowles J in Re X and Y (Children) [2018].The LA required permission to make the application and needed to satisfy the requirements of section 100(4) CA 1989. The court was satisfied the relevant grounds were made out; the declaration sought can only be made under the inherent jurisdiction, and the welfare of Z was clearly engaged.

9. It is clearly a serious matter to permit the LA to be released from its duty to inform and consult with parents pursuant to section 22 CA 1989. Hayden J stated in Re O (A Child) [2015] EWCA Civ 1169 (paragraph 27) that the requirement to solicit the views of a parent was 'not contingent upon a moral judgment of parental behaviour' but is there to promote the paramount objective of the statute as a whole, which is the welfare of the child.

10. Of particular relevance in this case was the evidence that the father had continually attempted to breach an order of 2015 which set out the limited parameters of his involvement in Z's life. In January 2018 it was suggested that the father's associates tried to force their way into Z's new address, causing her significant distress. The court commented on the father's inability in any of his written documents to recognise or understand the impact of this on Z.

11. The court therefore accepted the submissions of the LA - Article 6 would, all other matters being equal, favour disclosure to the father of information about Z, but when looking at the competing rights, in particular the Article 8 rights in relation to Z, there was 'weighty justification' for compromise of the father's rights.

Summary by Sarah Phillimore, St John's Chambers

You can read the full judgment of LA v XYZ (Restriction on Father's Role in Proceedings) [2019] EWHC 2166 (Fam) on BAILII