Child Arrangements  |  Child law  |  Family law

Must the father be told about care proceedings?

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Walker Family Law
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Must the father be told about care proceedings?

When a local authority commences care proceedings in relation to a child it will normally of course notify both of the child’s parents. The parents have the right to oppose the making of a care order, and obviously they need to be told about the proceedings in order to exercise that right.

But what if the parents are separated, or perhaps have never even lived together at all? This is not at all unusual, with the child most often residing with the mother. Does the father in such a situation still have to be informed of the care proceedings?

This question recently arose in a case that went to the Court of Appeal, but before we come to that, a quick summary of the law.

The position of the father in such a case depends upon whether he has parental responsibility for the child.

Fathers with parental responsibility

The father will have parental responsibility for the child if he was married to the child’s mother, if he was registered as the father on the child’s birth certificate, if he obtained it with the mother’s agreement, or if a court granted it to him.

Clearly, this means that many fathers in care cases will have parental responsibility for the child, but still many will not, especially where they never lived with the mother.

If the father does have parental responsibility for the child then the position regarding care proceedings is quite straightforward: he is automatically made a party to the proceedings. He is therefore entitled to respond to the proceedings and, if he wishes, oppose the making of a care order.

Fathers without parental responsibility

Here the situation is slightly different.

The father is not automatically made a party to the proceedings. Instead, the local authority must give notice of the proceedings to anyone it believes to be the father of the child, even if he does not have parental responsibility.

The father may then choose whether he wishes to take part in the proceedings.

Dispensing with service

Whether or not the father has parental responsibility, the local authority, or even the mother, may apply to the court for an order that service of the proceedings upon the father be dispensed with, on the basis that this is necessary to safeguard the welfare of the mother and/or the child.

Whether or not the court grants such an application depends upon the circumstances of the case. However, it is normally considered to be in the child’s interests that the father be notified. The mere fact, for example, that the father has had nothing to do with the child, or even that he is not aware of the child’s existence, does not necessarily mean that the application will be granted.

In short, the circumstances must be exceptional for the court to grant the application.

This was demonstrated in the recent Court of Appeal case.

The issue in the case concerned a four month-old child, who the mother claimed was “conceived during one of several incidents of non-consensual sexual intercourse”. The mother said that when he became aware of the pregnancy the father, who was married to another woman, was abusive and threatening towards her, demanding that she have a termination, failing which he would kill the child.

Care proceedings began in relation to the child, and the mother applied to the court for an order that the father should not be served with notice of the proceedings.

However, notwithstanding the threats made by the father, the judge did not find that this was an exceptional case, and therefore refused to grant the application, even though the father had not had anything to do with the child.

The mother appealed, to the Court of Appeal.

The Court of Appeal found that the judge was entitled to find that the risk that the father posed to the mother could be managed, and that there were potential benefits to the child from the father taking part in the proceedings. Accordingly, the mother’s appeal was dismissed.