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.

ICLR

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The WLR Daily case summaries

[2020] WLR(D) 606B

Family Division

A Local Authority v M and others

[2020] EWHC 2741 (Fam)B

2020 Oct 5; 19

MacDonald J

Children— Inherent jurisdiction— Service— Dispensing with service— Local authority applying under inherent jurisdiction of High Court for authorisation of deprivation of liberty of child suffering mental disorders as a result of troubled childhood— Application to dispense with service of proceedings on father— Child wishing father to know nothing of current situation— Whether power for court to dispense with service in such circumstances— Factors to be considered— Whether order to be made— FPR r 6.36

A local authority successfully applied for an urgent declaration, under the inherent jurisdiction of the High Court, authorising the deprivation of B, a 17-year-old struggling with mental health disorders, of his liberty. In circumstances where historic findings of domestic abuse had been made against the father, who did not appear on B's birth certificate but was described in previous care proceedings as having parental responsibility, and where B did not wish for his father to be informed of the proceedings, the matter was listed for a further hearing to determine the local authority's application to dispense with service of the proceedings on the father pursuant to rule 6.36 of the Family Procedure Rules 2010.

On the application—

Held, application granted. The terms of rule 4.8(8) of the Family Proceedings Rules 1991, which permitted the court to direct that a requirement under the rules for a document to be served in proceedings was not to apply, were now reflected in rule 6.36 of the 2010 Rules, which empowered the court to dispense with service of any document which was to be served in proceedings. By parity of analysis with the older authorities determined under the 1991 Rules in respect of care and placement proceedings, in an appropriate case the court had power pursuant to rule 6.36 of the 2010 Rules to dispense with service on a parent of proceedings for an order under the inherent jurisdiction notwithstanding the requirement for service contained in rule 12.8(1). Accordingly, remaining mindful of (i) the need to strike a fair balance between the factors that were present in the individual case, and (ii) the expectation that the court would always hesitate before concluding that it was appropriate to dispense with service on a parent of proceedings concerning their child, in the present case, where, inter alia, both the risk and magnitude of the potential harm to B were high should the father be served, it was proper and necessary to dispense with the requirement to serve the father with the proceedings (paras 24, 33, 34–39, 46, 47).

Summary of legal principles to be applied by the court in determining whether to exercise its power to dispense with service of proceedings for an order under the inherent jurisdiction on a father with parental responsibility (para 32).

Fergal Allen (instructed by Head of Legal Services) for the local authority.

The mother in person.

Ms Willis (instructed by Bromleys Solicitors llp, Ashton-under-Lyne) for the child, by the children’s guardian.

The father did not appear and was not represented.

Thomas Barnes, Solicitor

Referenced Legislation

FPR r 6.36

CASES DATABASE

Full judgment: BAILII

Subject(s):

Date: 19/10/20🔍

Court: High Court (Family Division)🔍

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Published: 29/10/20 22:26

Cached: 2021-11-30 01:00:24