S (A Child), Re

When a biological father without parental responsibility applies to join care proceedings, the court starts from a presumption in favour of joinder. The father need not show an arguable case, a particular application, or justify being heard. The court must identify a justifiable reason not to join him. The assessment must account for his Article 6 and 8 rights and the child’s welfare, which is important but not paramount. The presumption should not be displaced where concerns about harm to the child or other parties can be managed through case-management measures, including controlled and redacted disclosure and directions for vulnerable participants. A history of living together as a family may establish Article 8 family life notwithstanding biological complications or a period without contact.

The appellant was S’s biological father. He was not named on S’s birth certificate and did not have parental responsibility. Following the mother’s departure from the family home, allegations were made against the father and criminal proceedings followed. Care proceedings were later issued in relation to concerns about S’s welfare which were unrelated to the father.

The father applied to be joined as a party. On 20 February 2023, Her Honour Judge Wright, sitting in the Family Court at Swindon, refused the application, considering that he had no arguable case and that there was a justifiable reason for refusing joinder. The father appealed, arguing that the wrong test had been applied, that insufficient regard had been given to his Convention rights, and that mitigation had not been considered.

Disposition. The appeal was allowed on all three grounds. The father was joined as a party. Questions concerning the extent and form of his participation, including disclosure and redaction, were remitted to the judge.

1. Under rule 12.3(3)(a) of the Family Procedure Rules 2010, a biological father without parental responsibility has no automatic right to party status, but there is a presumption in favour of joinder. The presumption is rebutted only where the court finds a justifiable reason not to join him. The burden is not on the father to establish a justifiable reason for joinder or a good arguable case. The child’s welfare is important but not paramount: North Yorkshire County Council v G [1993] 2 FLR 732; Re B [1999] 2 FLR 408; Re P [2001] 1 FLR 781.
2. A father without parental responsibility need not have a specific application to make. He ought ordinarily to be heard before major decisions are taken in relation to his child, following Re B [1999] 2 FLR 408.
3. The court must consider whether concerns about joinder can be mitigated through case-management powers. Controlled, redacted or solicitor-supervised disclosure may be ordered under rule 4.1(3)(b) of the Family Procedure Rules 2010. Such powers should be used where strictly necessary, with the feared harm rigorously examined and balanced against fair-trial requirements, as explained in Re R [2021] EWCA Civ 162. Part 3A and PD3AA of the Family Procedure Rules 2010 also permit protective directions for vulnerable participants.
4. Applying the Article 8 principles identified in Re CD [2017] EWFC 34, the father had established family life with S through more than eight years of living together as a family and his prompt application after notice of the proceedings. His Article 8 rights therefore engaged Article 6, including the presumption of joinder. The first-instance judge had reversed the burden and allowed concern for the mother to displace the presumption without considering adequate mitigation.

• Court of Appeal (Civil Division) — On 20 June 2023, the appeal was allowed and the father was joined as a party under [2023] EWCA Civ 706. Issues concerning disclosure and participation were remitted.
• Family Court sitting at Swindon — Her Honour Judge Wright refused the father’s application for joinder on 20 February 2023.