Text:ICLR [2020] WLR(D) 606
The WLR Daily case summaries
Children— Inherent jurisdiction— Service— Dispensing with service— Local authority applying under inherent jurisdiction of High Court for authorisation of deprivation of liberty of child suffering mental disorders as a result of troubled childhood— Application to dispense with service of proceedings on father— Child wishing father to know nothing of current situation— Whether power for court to dispense with service in such circumstances— Factors to be considered— Whether order to be made— FPR r 6.36
A local authority successfully applied for an urgent declaration, under the inherent jurisdiction of the High Court, authorising the deprivation of B, a 17-year-old struggling with mental health disorders, of his liberty. In circumstances where historic findings of domestic abuse had been made against the father, who did not appear on B's birth certificate but was described in previous care proceedings as having parental responsibility, and where B did not wish for his father to be informed of the proceedings, the matter was listed for a further hearing to determine the local authority's application to dispense with service of the proceedings on the father pursuant to rule 6.36 of the Family Procedure Rules 2010.
On the application—
Held, application granted. The terms of rule 4.8(8) of the Family Proceedings Rules 1991, which permitted the court to direct that a requirement under the rules for a document to be served in proceedings was not to apply, were now reflected in rule 6.36 of the 2010 Rules, which empowered the court to dispense with service of any document which was to be served in proceedings. By parity of analysis with the older authorities determined under the 1991 Rules in respect of care and placement proceedings, in an appropriate case the court had power pursuant to rule 6.36 of the 2010 Rules to dispense with service on a parent of proceedings for an order under the inherent jurisdiction notwithstanding the requirement for service contained in rule 12.8(1). Accordingly, remaining mindful of (i) the need to strike a fair balance between the factors that were present in the individual case, and (ii) the expectation that the court would always hesitate before concluding that it was appropriate to dispense with service on a parent of proceedings concerning their child, in the present case, where, inter alia, both the risk and magnitude of the potential harm to B were high should the father be served, it was proper and necessary to dispense with the requirement to serve the father with the proceedings (paras 24, 33, 34–39, 46, 47).
Summary of legal principles to be applied by the court in determining whether to exercise its power to dispense with service of proceedings for an order under the inherent jurisdiction on a father with parental responsibility (para 32).
Fergal Allen (instructed by Head of Legal Services) for the local authority.
The mother in person.
Ms Willis (instructed by Bromleys Solicitors llp, Ashton-under-Lyne) for the child, by the children’s guardian.
The father did not appear and was not represented.
Thomas Barnes, Solicitor
Referenced Legislation
FPR r 6.36