Re S (Children: Party Status)

Party status in care proceedings is governed by a broad case-management discretion under rules 12.3 and 12.4 of the Family Procedure Rules 2010. The court should make a broad, practical assessment, having particular regard to the factors in section 10(9) of the Children Act 1989, but those factors are neither exhaustive nor a substitute for that assessment. The applicant’s arguable case and the purpose of joinder are relevant, but the question is whether the case is broadly a runner, not whether it is bound to succeed. Natural justice, the child’s relationship with the applicant, realistic care and contact options, effective participation and delay may together justify joinder.

Mr B appealed against the Family Court at Lincoln’s refusal to join him as a party to care proceedings concerning two children. He was a non-relative who had cared for C throughout the child’s life, had been assessed positively as a connected person, and had been caring for C under an interim care plan before C was moved to foster care. Recorder Evans dismissed the application, finding that any application by Mr B for a section 8 order would inevitably fail and that he had no legitimate role which could not be performed without party status. The appeal concerned the proper approach to joinder, fairness following C’s removal, and whether Mr B could participate effectively without becoming a party.

Lord Justice Peter Jackson gave the reasons for the decision. Lord Justice Moylan and Lady Justice Nicola Davies agreed. The appeal was unanimously allowed.

1. The court’s power under rules 12.3 and 12.4 of the Family Procedure Rules 2010 is a broad discretion to manage care proceedings fairly and efficiently. The factors in section 10(9) of the Children Act 1989 are relevant but do not constitute an exhaustive test. The court must weigh the circumstances of the individual case.
2. The purpose that party status would serve may be considered, including whether the applicant has an arguable case for a significant remedy. That inquiry cannot replace the broader practical assessment. The correct question is whether the case is broadly a ‘runner’, not whether it is a ‘winner’, as illustrated by Re W [2016] EWCA Civ 793. The guidance in Re B (A Child) [2012] EWCA Civ 737 was applied.
3. The recorder could not properly conclude that Mr B’s case would inevitably fail. Relevant considerations included C’s close relationship with Mr B, C’s special needs, the absence of a comparable adult relationship, the relatively moderate gravity of unproven allegations, the fairness concerns arising from C’s removal without an apparent opportunity to be heard, the benefit of placing all realistic options before the court, Mr B’s inability to participate effectively without party status, and the need to avoid delay.
4. The alternatives identified by the recorder were inadequate. If Mr B had a meaningful right to challenge the special guardianship assessment, the court should have explained how that could occur and given directions. The proposed pragmatic arrangement was party status in substance without party status in form.
5. The order was fact-specific and unusual. It was justified by the combination of Mr B’s constant presence in C’s life, his status as an approved carer from whom C had been removed without apparent due process, and the absence of equivalent local-authority placement duties under section 22C of the Children Act 1989. Mr B was joined as the Fifth Respondent, and the matter was listed for case management.

• Court of Appeal (Civil Division): appeal allowed and Mr B joined as the Fifth Respondent in the care proceedings; case-management directions were made: [2022] EWCA Civ 1717.
• Family Court at Lincoln: Recorder William Evans dismissed Mr B’s application for party status on 30 September 2022 in case LN22C50054.