A Local Authority v B (Dispensing with Service)

Under FPR 2010 r 6.36, the court may dispense with service of proceedings under the inherent jurisdiction on a parent who would otherwise be served under FPR r 12.8. The starting point is parental participation, progressing from full participation to partial participation and, only as a last resort, exclusion.

The court must rigorously examine the nature, gravity and likelihood of the feared harm. No minimum physical risk is required. The greater the potential harm, the lower the risk needed to justify exclusion. Exceptionality is not a separate test or shortcut. The court must strike a fair balance, giving effect to strong countervailing factors where notice itself creates a high risk of serious harm to the child.

The local authority sought to invoke the inherent jurisdiction in relation to B, a 17-year-old subject to a declaration authorising deprivation of liberty. It applied to dispense with service on B’s father, whose parental responsibility was uncertain and whose history with B’s family included allegations of serious domestic abuse.

B had no contact with his father for many years and strongly opposed notification. The evidence indicated that notice would seriously destabilise B’s fragile mental health and might precipitate severe self-harm. The central issue was whether the statutory and procedural requirements for service should be displaced in the particular circumstances.

1. Power to dispense with service. FPR 2010 r 6.36 empowers the court to dispense with service of any document required to be served. By parity of analysis with Re X (Care: Notice of Proceedings) and A Local Authority v M and F, that power extends to proceedings under the inherent jurisdiction notwithstanding FPR r 12.8(1).
2. Applicable approach. The starting point is that a parent should be able to participate. The court should consider full participation, then partial participation, and exclude the parent only as a last resort. It must identify and rigorously examine the nature, likelihood and gravity of the feared harm. There is no minimum requirement of significant physical risk.
3. The assessment must include both the probability and magnitude of the consequences, and whether the risk can be managed by controlling the court’s processes. The greater the harm, the smaller the risk required. The child’s welfare is important but is not paramount because the court is not determining the child’s upbringing. Where parental responsibility or family life under article 8 is engaged, a high degree of exceptionality and strong countervailing factors are required. Exceptionality is not itself a test; the court must strike a fair balance.
4. On the evidence, notification itself, rather than merely disclosure of documents, created a high risk of serious emotional harm and consequential physical danger to B. That risk could not be managed by limiting the father’s participation. B’s views, and the evidence of the social worker and Children’s Guardian, were entitled to significant weight.
5. The balance therefore demonstrated the necessary high degree of exceptionality. Service on the father was dispensed with.