Bury Metropolitan Borough Council v ML & Ors

A parent with parental responsibility is ordinarily entitled to participate in public law proceedings concerning their child. Exclusion, removal as a party or withholding service requires a rigorous assessment of the nature, likelihood and gravity of the feared harm. The court must consider whether the risk can be managed through control of its own processes, including limited disclosure. Exceptionality is not a freestanding test or shortcut; a fair balance must be struck between the competing factors. A child’s wishes, parental absence, lack of Article 8 family life or alleged misconduct do not, by themselves, justify exclusion. Statutory duties to consult and provide information under the Children Act 1989 may be dispensed with only in exceptional circumstances and where the statutory threshold for inherent-jurisdiction relief is met.

The local authority sought to remove a father with parental responsibility as a respondent to care proceedings concerning his sixteen-year-old daughter. It also sought declarations under the inherent jurisdiction relieving it of duties under sections 22 and 26 of the Children Act 1989 to provide information and consult him.

The father knew of the proceedings, wished to participate and had instructed solicitors. The authority and the child’s mother and guardian relied on the child’s strongly expressed opposition and evidence that his involvement might cause serious emotional harm. The central issues were whether the father should be excluded and whether the statutory consultation duties could be disapplied.

1. Applications refused. The father remained a party to the care proceedings. The applications to remove him and to relieve the local authority of its duties under sections 22 and 26 of the Children Act 1989 were dismissed.
2. A father with parental responsibility is an automatic respondent under FPR 2010 rule 12.3(1), and the starting point is participation. Article 6 rights arise independently from Article 8 family-life rights because the father’s civil rights and obligations derive from parental responsibility under section 3 of the Children Act 1989 and his procedural status.
3. The court followed the appellate framework requiring it to identify rigorously the nature and extent of the feared harm, assess whether there is a real possibility of harm that cannot sensibly be ignored, consider the gravity of the consequences and examine whether the risk can be managed by controlling the court’s processes. The greater the harm, the smaller the risk required. Welfare was important but not paramount.
4. Exceptionality was not an independent test or shortcut. The court had to strike a fair balance between the competing factors. The child’s wishes and feelings, parental absence, absence of established family life or alleged egregious conduct did not, without more, justify exclusion. The child’s objection had to be considered as part of the assessment of harm.
5. Although there was a real possibility that involvement might cause distress, the evidence showed improved circumstances, resilience, support and the availability of careful explanations, therapeutic assistance and restricted disclosure. The risk could therefore be managed without exclusion.
6. The statutory duties under sections 22 and 26 could be displaced under the inherent jurisdiction only where there was reasonable cause to believe that, without intervention, the child was likely to suffer significant harm, and only in exceptional circumstances. Those requirements were not met. The father’s participation was therefore continued subject to withholding information identifying the child’s placement, school and other specified sensitive matters.

First-instance decision. No appellate history was stated in the judgment.