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 A review of a recent Family Law Report

A Local Authority v JK & Anor [2021] EWHC 33 (Fam)

An application was made by a Local Authority for declarations that non-notification to the baby’s father and wider family was lawful.  The Local Authority sought orders under FPR 19 r14.21 and inherent jurisdiction.  The application was dismissed.

The background of the case is that W was born on 03.02.20.  Three days prior to his birth, his mother (“M”) notified the Local Authority indicating that she did not want anyone to be made aware of W’s existence.  The LA social worker originally told M that no court application would be required.  The applications were issued when W was ten months old.  After exploring matters fully, the court applied established principles and decided that father and wider family should be notified.

The below points were made:

1. Peel J voiced his dissatisfaction with the two distinct application procedures and jurisdictions invoked for non-notification declarations. The non-notification of father requires an application to be made under amended rule 14.21 of the Family Procedure Rules 2010, which allows the application to be issued within the Family Court.  Applications for non-notification of wider family members, however, must be made under the inherent jurisdiction of the High Court.  Applications could therefore be heard in two different courts but are often made together and intertwined.

2. The judgment in Cases A, B and C [2020] EWCA Civ 41 had been delivered 3 weeks before W’s birth and should have been in this Local Authority’s minds. The judgment summarises the facts of A, B and C and observes how similar the cases were.  The general approach to be taken is in paragraphs 45-84 of that case:

• • Absence of notification / maintenance of confidentiality is exceptional
  • The welfare of the child is important but the discretion of the court is not governed y the paramountcy principle
  • The procedure needs to be both urgent and thorough, this should be closely adhered to by any Local Authority in this situation
  • Reasons for non-notification and the facts of the case should be objectively and thoroughly assessed mindful of the often limited and one-sided nature of the information given. All information that can be discovered without compromising confidentiality should be gathered and respectfully scrutinised
  • There is no single test, but the court gives (para 22) a non-exhaustive list of factors to be considered, summarised from para 89 of Re A, B and C.

3. There was an utterly unacceptable delay in issuing the applications, which were made when W was 7 months old. In Re A, B and C and application made 4 months after birth was described as ‘belated’.  Applications should ordinarily be brought within a matter of weeks, rather than months after birth.

Peel J recommended that the Family Procedure Rules Committee should revisit rule 14.21 to consider expanding its scope to encompass wider family members.  In the meantime, linked non-notification applications should be referred to the designated family judge for allocation to a High Court judge or section 9 deputy High Court judge.