Local Authority v M & M & Ors (Rev 1)

In care proceedings, a parent with parental responsibility ordinarily has a right to notice, participation and representation. That right may be restricted or excluded where the requirements of fairness and the parties’ Article 8 rights cannot otherwise be reconciled with a real and substantial risk of serious harm. The court must begin with full participation, consider whether partial participation and redaction can manage the risk, and treat exclusion as a last resort. It must assess both the likelihood of disclosure and the gravity of the consequences, together with the court’s ability to control its own processes. Exclusion may be ordered where accidental disclosure remains realistically likely and only exclusion protects the children and the other parent. Such an order must remain under review, particularly if the parent seeks contact or the local authority seeks removal of the children.

The local authority brought care proceedings concerning two children living with their mother at a concealed address. The father, who had parental responsibility and was imprisoned, was alleged to have engaged in serious domestic violence and to have continued making credible threats through correspondence and contacts outside prison.

The mother and the children’s guardian sought an order under FPR 1991, r 4.7(5)(b) discharging the father as a party and withholding the existence of the proceedings from him. The local authority opposed the application, principally because it wished to obtain information from the father and his family and believed that participation might assist the court’s control of his conduct. The central issue was whether the father’s procedural rights could be accommodated without exposing the mother and children to unacceptable risk.

1. Jurisdiction and starting point. The court had jurisdiction under FPR 1991, r 4.7(5)(b) to discharge the father as a party. A father with parental responsibility would ordinarily be entitled to service, participation and representation in proceedings under Part IV of the Children Act 1989. Exclusion was nevertheless legally possible, although it was a grave and exceptional step.
2. Rights-based framework. The father’s Article 6 right to a fair hearing was not absolute. Applying the proportionality principle in Ashingdane v United Kingdom (1985) 7 EHRR 528, any restriction had to pursue a legitimate aim and preserve the essence of the right. The court also had to give full weight to the Article 8 rights of the children and both parents, including the mother’s right to care for the children without threats of violence and the children’s right to family life in safety.
3. Proportionality and risk. The court was to start with full participation, then consider partial participation through redacted disclosure, and use exclusion only as a last resort. It had to assess both the likelihood of disclosure and the magnitude of the consequences if disclosure occurred, while considering whether control of the court’s processes could manage the risk. On the evidence available at the interim stage, the father presented a real and substantial risk of tracing and harming the mother and children. The number of documents and persons through whom they would pass made accidental disclosure realistically likely despite extensive redaction.
4. Disposition and review. The countervailing circumstances were sufficiently overwhelming to justify excluding a parent with parental responsibility whose whereabouts were known. The father was discharged as a party and the existence of the proceedings was not to be disclosed to him. The order was to remain under review. Reconsideration would be required if he sought contact under Part II of the Children Act 1989 or if the local authority sought to remove the children from their mother’s care.