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B (Children), Re [2021] EWCA Civ 1221

This case involved the mother of two children, B aged nearly 3 years and C nearly 5 months old.

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1. They were subject to care proceedings in May 2021 and placed in foster care. B's father S had played no part in her life and the mother raised serious concerns about his abusive behaviour prior to her birth. The mother therefore did not want S to be told about the care proceedings. Her application to dispense with service was dismissed; the Court of Appeal finding that the Judge had the relevant principles in mind and had carried out the necessary balancing exercise fairly. Each case would depend on its own facts and the authorities showed a broad consistency in the court's approach. However it would be necessary to carefully consider how S was notified given his lack of involvement in B's life.

2. With regard to who is an automatic party to care proceedings, the statutory framework provided by the Family Procedure Rules differentiates between a father with and without parental authority. If a father has PR he is an automatic party, if he does not he must be notified of proceedings. Unless the court directs otherwise, the applicant must serve every person who is believed to be a parent who doesn't have PR, a copy of Form C6A, to provide notice of hearings to non-parties (FPR PD 12C).

3. The Court of Appeal considered that in re X (a Child) (Care Proceedings: Notice to Father without Parental Responsibility) [2017] 4 WLR 110 , helpfully encapsulated the overall position with regard to the tensions and difficulties in these kind of cases. HHJ Bellamy sitting as a High Court Judge said at [46]:


"46. Each year local authorities issue care proceedings in the Family Court in which the fathers of the children concerned do not have parental responsibility and who, though not parties, are nonetheless entitled to receive a copy of Form C6A. Until they receive Form C6A some fathers are in a state of ignorance about the existence of their child. Others are aware of the existence of the child and of the fact that they are the child's biological father but have thus far shown no interest in the child's life. For the children involved it is important that attempts are made to engage with their birth father and perhaps also his wider family. The starting point must be two-fold. First, that it will normally be in the interests of the child that her birth father should receive a copy of Form C6A thereby enabling him to apply for party status so that he can participate in the proceedings. Second, that the child and her mother should not be put at risk of harm as a result of seeking to engage the father in the proceedings. It is a matter of balance and that is the case whether or not the father is entitled to the protection of Article 8 and Article 6."

4. The mother asserted that B was conceived following rape by S and his reaction when becoming aware that she was pregnant was so abusive that she had fear for her own and B's safety if he was told about the care proceedings. The Judge accepted the mother's evidence and proceeded on the basis that S had no PR, no relationship with his daughter and there was evidence of 'intimidation, control and sexual exploitation' by S. She argued he had no Article 8 or 6 rights, and when this was balanced against the risk to B and her mother if he was notified, the balance should fall squarely in favour of dispensing with service upon him. 

5. However, the Judge noted the factors relied upon in Re A local authority v B (Dispensing with Service) [2020] EWHC 2741 and the need for 'rigour in analysing the risk and the gravity of harm feared' before taking such an 'exceptional' and 'last resort' step. He considered that the authorities to which he had been referred related to "really very significant violence and abuse over sustained periods of time" and that in the current case, contact between the mother and S had ceased following the threats and measures could be put in place to protect the mother. It was also necessary to consider B's Article 8 rights to know the truth about her paternity.

6. Having weighed all these factors the Judge was not satisfied this was an 'exceptional' case to justify not informing the father, and the risk could be managed, but that the notification did need to be handled sensitively.

7. The mother appealed against this decision on two grounds:


1. The Judge failed to take into account that S had no Article 8 rights regarding family life with B

2. The Judge erred in the balancing exercise, applying a higher test of exceptionality to justify the non-service of form C6A, failed to take into account the interference with the Article 8 rights of mother and child and wrongly assessed the risk.

8. The Local Authority and Children's Guardian maintained that the Judge's decision was reasonable in all the circumstances and the Court of Appeal agreed.

9. The first ground was dismissed as without merit; the Judge had not proceeded under any misapprehension that S had any Article 8 rights.

10. With regard to the proper exercise of balancing competing rights, the Court of Appeal referred to Re A (Adoption Notification of Fathers and Relatives) [2020] EWCA Civ 41 where Peter Jackson LJ considered "that there is a broad consistency in the court's general approach to the issue of notification of fathers and relatives. In my judgement, the balance that has been struck between the competing interests in these difficult cases is a sound one and there is no need for any significant change of approach". The Court of Appeal agreed that the decision as to whether confidentiality should be maintained can only be made by striking a fair balance between the factors that are present in each individual case.

11. However, the Court of Appeal did need to address the use of the word 'exceptional' in the first judgment. It was argued on behalf of the mother that there was a distinction between a test of 'higher exceptionality' and 'exceptionality', the former applying to those with Article 8 rights. The Court of Appeal considered this an attempt to revive the difficulties caused by attempting to distinguish between 'wrong' and 'plainly wrong' which had to be put to rest by the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33. The 'test' should not be a semantic one, as this will detract from the essential task of balancing the fact specific features in every case. This exercise will inevitably reveal that some features of a particular case are heavily weighted against dispensing with service but different combinations of factors will apply in every case and different weighting will be merited by those individual circumstances.

12. The Court of Appeal determined that the Judge had in mind the relevant legal principles that he must and demonstrably did apply. However, concern was raised about the lack of thought given to the actual process of serving S, given the potential sensitivities. Therefore the Local Authority was ordered not to serve the C6A notification upon S without the approval of the allocated Judge about the way it should be done.

Case summary by Sarah Phillimore, Barrister, St John's Chambers

For full case, please see BAILII