Behind the headline: Notifying non-parties of care proceedings

A recent Times Investigation article entitled “Jailed rapist given chance to see his victim’s child” triggered mass media attention into Rotherham Council’s decision to notify a father about care proceedings involving his child. In 2016, the father was imprisoned for 35 years after being convicted of multiple sexual offences against nine children. The child subject to proceedings was born as a result of his father raping Samantha Woodhouse, the mother, aged 15 at the time.

A spokesperson for the Council claimed the father had been notified in accordance with legal requirements,  under Family Practice Direction 12C of the Family Procedure Rules (not a Criminal Practice Direction as reported by the Guardian newspaper), which requires an Applicant to serve Form C6A Notice of Proceedings to Non-Parties on:

every person whom the applicant believes to be a parent without parental responsibility.”

It is worth noting that a person who does not have parental responsibility is not entitled to automatic party status pursuant to Rule 12.3 of the Family Procedure Rules in the same way a father would be if they did have parental responsibility. At first instance, they are only entitled to be notified that proceedings have been issued.

The mother of the child, has since commenced a campaign for a change to the Children Act 1989 to “remove the rights of men who’ve fathered children through rape.” The campaign has attracted the support of the Victim’s Commissioner Baroness Newlove and various MPs,  including Louise Haigh. The Ministry of Justice has also responded to Ms Woodhouse’s complaint, suggesting it has commenced an investigation into whether the decision “was an error or the result of a wider problem with the law”. The outcome of this enquiry is not yet known.

Does the Children Act 1989 require reform?

Although the Children Act itself does not contain a provision allowing a Local Authority to choose whether to serve Form C6A, the issue has been addressed by the Courts on a number of occasions. Case law has given the Local Authority the ability to dispense with the duty to serve notice on parents who do not have parental responsibility.

As recognised by the Guardian Newspaper, the issue was addressed by HHJ Bellamy in the case of Re X (A Child) (Care Proceedings: Notice to Father without Parental Responsibility) [2017] EWFC 34.  Here it was held that upon receiving an application the Courts must determine whether the father’s rights under Article 8 of the European Convention on Human Rights are engaged. This is a question of fact which the Court must answer with regard to domestic and international case law.  If the father’s Article 8 rights are not engaged, an analysis of his rights under Article 6 is not undertaken. Even where the father’s rights under the ECHR are engaged, the Court can still decide to dispense with the requirement to give notice of proceedings if there are “strong countervailing factors” against such notice being given. Dame Butler-Sloss P in the case of Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646 suggested such factors would include “rape, or other serious domestic violence”. If the father does not enjoy the protection of Article 8 and Article 6, the threshold for determining whether the Court can dispense with notice is lower, although any order would still need to be justified on the facts of the case. If an application had been made by Rotherham Council in the present case, it is unlikely that the father’s Article 8 or 6 rights would have been engaged since he has not been involved in the child’s life thus far.

In light of the above case law, it is clear that women such as Ms Woodhouse can already be protected from the trauma of seeing their abuser joined as a party to care proceedings in appropriate circumstances. There is not therefore such an urgency to reform the Children Act 1989.  Although Rotherham Council should have known about the exception to serve notice on non-parties, there is a clear need clarify the legal position, given that the Government spokesperson also failed to mention the existence of the relevant case law in their first statement to the Times.

The impact of the father’s involvement in proceedings on the mother only forms part of the balancing exercise in any welfare analysis. Allowing this father to be involved in proceedings does not immediately open the door for face to face contact with the child or result in an order that this child live with a paternal family member they have never met before. A child should be given the opportunity to have an understanding of their paternal family’s culture or be able to build relationships with wider family members such as half siblings should they so desire. Any suggestion that the Children Act should be reformed to prevent all fathers that have raped or abused the mother of a subject child from having notice of proceedings requires serious contemplation.  After all, it is the child’s welfare, not the mother’s welfare that is the paramount consideration.

 

Sarah Beasley

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