LA v Y & Anor

When determining applications affecting a parent’s parental responsibility, participation in care proceedings or access to documents, the child’s welfare remains paramount. The court must undertake a careful and proportionate balancing exercise, including consideration of the children’s welfare needs and the parties’ rights under Articles 6 and 8 of the Convention. Orders removing a parent’s active involvement are draconian and rare, but may be justified where continued involvement creates a very high risk of psychological or emotional harm. The inherent jurisdiction may be invoked under section 100 of the Children Act 1989 only where the statutory conditions are met. A declaration may then be made disapplying consultation duties under section 22 where compliance would be inconsistent with the children’s welfare.

The local authority brought care proceedings concerning five children after their mother was killed by Mr X, the father of the two eldest children. Mr X was serving a life sentence for the murder. Applications were made on behalf of the children and by the local authority to restrict his exercise of parental responsibility, limit disclosure of documents to him, and discharge him as a party. The local authority and the children’s guardian also sought a declaration concerning the consultation duty under section 22 of the Children Act 1989. Mr X sought a prohibited steps order preventing Mr Y from removing the children from the jurisdiction.

An application under section 91(14) was not pursued after the court considered the procedural safeguards identified in Re N (Children) [2019] EWCA Civ 903. The central issue was whether the children’s welfare justified the exceptional restrictions sought.

1. Outcome. The applications by the local authority and the children’s guardian were granted. Mr X’s prohibited steps application was dismissed. The court granted leave under section 100(3) of the Children Act 1989 to invoke the inherent jurisdiction and made a declaration under section 100 absolving the local authority from consulting Mr X about the children’s care.
2. Parental responsibility is an important status, exercised for the child’s benefit. It cannot be revoked, but its exercise may be restricted. The welfare paramountcy principle under section 1 applied. The court could use the welfare checklist as an analytical framework although section 1(4) imposed no obligation to do so, applying the principles summarised in B and C (Change of Names: Parental Responsibility: Evidence) [2017] EWHC 3250 (Fam), drawing on Re D (Withdrawal of Parental Responsibility) [2014] EWCA Civ 315.
3. The orders sought were draconian and rare. The court nevertheless had to assess the wider evidential canvas and balance the children’s welfare against Mr X’s Article 6 and Article 8 rights. The children’s profound trauma, their mature and consistent wishes, Mr X’s inability to exercise parental responsibility meaningfully, his lack of insight or responsibility, and the serious risk to their stability and psychological welfare justified the restrictions.
4. The court’s case-management powers under Parts 4 and 12 of the Family Procedure Rules 2010, including the principles discussed in Re X and Y (Children) [2018] EWHC 451 (Fam), supported restrictions on participation and disclosure. Applications to withhold documents required anxious, rigorous and vigilant scrutiny, consistently with Re B (Disclosure to other parties) [2001] 2 FLR 1017.
5. Leave under section 100(4) was justified because the desired result could not be achieved through an order under the Children Act 1989, and there was reasonable cause to believe that failure to exercise the inherent jurisdiction would expose the children to significant harm. Section 22 imposed a duty to ascertain the wishes and feelings of parents, but the declaration was justified because consultation with Mr X was inconsistent with the older children’s welfare.