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A Local Authority v B [2020] EWHC 2741 (Fam)

Inherent jurisdiction - dispensing with service It was proper to dispense with service of proceedings on B's father in relation to inherent jurisdiction proceedings seeking a declaration authorising the deprivation of B's liberty at a community therapeutic placement following discharge from section 2 detention in hospital.

Extract from judgment

Drawing these threads together, in determining the local authority's application for an order dispensing with service of these proceedings on the father, I am satisfied that I should apply the following legal principles in deciding whether to exercise my power to dispense with service of proceedings for an order under the inherent jurisdiction on a father with parental responsibility:

i) The starting point is that a father should be able to participate (in a wide sense) in proceedings concerning his child. The court should start with full participation then consider partial participation and then, only as a device of last resort, the father's exclusion from the proceedings.

ii) The court's task is to identify the nature and extent of the harm in contemplation. The court should be rigorous in its examination of the risk and gravity of the feared harm.

iii) There is no requirement that a significant physical risk be demonstrated. Harm and risk comes in many guises.

iv) When evaluating the risk of future harm, there is no minimum requirement. The court must be alert both to the risk and to the magnitude of the consequences should the risk eventuate, and must also consider whether and to what extent that risk can be managed by the court's control of its own processes. The greater the harm the smaller need be the risk.

v) The court is not determining a question with respect to the upbringing of the child so the welfare of the child, whilst an important consideration, is not paramount.

vi) Authorities in the Strasbourg jurisprudence put a high bar on excluding a parent with parental responsibility. In this context, where a parent has parental responsibility or a right to respect for family life under Art 8, a high degree of exceptionality must be demonstrated by strong countervailing factors to justify their exclusion from participation in the proceedings.

vii) It must be remembered that exceptionality is not, in itself, a test or a short cut and a fair balance must be struck between the factors that are present in the individual case.

CASES DATABASE

Full judgment: BAILII

Subject(s):

  • Inherent jurisdiction cases🔍

Date: 19/10/20🔍

Court: High Court (Family Division)🔍

Judge(s):

Parties:

Citation number(s):

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Published: 29/10/20 22:26

Cached: 2020-12-01 12:12:24