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Participating in Child Care Proceedings - Becoming a ‘party’ to a case (25 August 2010)

For many clients who are about to embark on Child Care proceedings, having the ability to be present in the court room and to be involved in the proceedings is an important consideration. At Duncan Lewis, we pride ourselves on being able to provide advice and empower our clients to ensure that their case is presented in the best possible manner.
A common misperception amongst new clients is that their participation, especially in Child Care related cases, is guaranteed and accepted from the outset. Within the legal framework however, only clients that meet certain criteria or that make a formal application to the court for permission are able to participate in proceedings and to be present in the court room. Clients that meet the criteria or are granted permission or leave are formally referred to as a party to a case.

For Child Care related cases, the law that applies is set out in Section 10 (4) of the Children Act 1989 which sets out the list of people entitled to make an application to the court concerning a child. Clients that meet one of the following criteria are able to become a party to a case without needing to seek the permission of the court:

• Parents, guardians or special guardians of the child
• Holders of a residence order in respect of the child
• Resident step-parents of the child
• Anyone with whom the child has lived for at least 3 years
• Anyone who has the consent of the residence order holders
• Anyone who has the consent of the local authority where the chid is in care
• Anyone who has the consent of those that have parental responsibility for the child

Clients that do not meet the above criteria may still be able to participate in the proceedings by making an application to the court. As part of the application a form (Form C2) is completed on behalf of the client and submitted to the court for permission. At this time any other parties associated with the case must also give their consent.
As with many other aspects of legal proceedings, the timing of such applications is important. The earlier a client is able to instruct their solicitors and become a party to a case, the more likely they are to have the opportunity to participate in a meaningful and constructive manner. At Duncan Lewis our highly specialised Child Care Law department comprises experienced solicitors who are willing and able to help you navigate through such processes towards the best possible outcome.

In a recent case, Duncan Lewis Solicitors represented a father in complex care proceedings. The proceedings began on the child's birth 8 months prior and the local authority refused to accept that the client was the child's father. The client had not sought legal advice earlier as he was unaware of his rights and the options available to him and as a result he had not been formally made a party to the case. The client had instructed the firm at a very late stage when the DNA test results had confirmed that he was indeed the child's father. The first hurdle for the client was that he needed the leave of the court to become a party to the case and make the application as the child by that stage was under the care of the local authority. We prepared an application to the court to be listed on an urgent basis stating that it was important for him to be involved without any further delay. At the hearing the other parties involved in the case consented to the client being made a party and the court gave the client permission and consequently such an order was made by consent.

In this particular case had the other parties not consented to the client being made a party to the case then the court would have had to determine under section 10(9) of the Children Act 1989 whether permission should have been granted to the client to make the application. The court would have considered:-

(a) the nature of the proposed application
(b) the client’s connection with the child
(c) any risk there might be of that proposed application disrupting the child’s life to such an extend that he would be harmed by it; and
(d) where the child is being looked after by a local authority –
(i) the authority’s plans for the child’s future,-and
(ii) the wishes and feelings of the child’s parents.

In the case of Re M (Care: Contact: Grandmother’s application for Leave) [1995] 2 FLR 86, the court accepted that the test was whether there was a ‘good arguable case’. The requirement of leave is intended to act as a filter to protect the child and his family against unwarranted interference with their comfort and security, whilst ensuring that the child’s interests are properly respected. In general terms, the more tenuous the Applicant’s connection with the child the harder it will be to obtain leave. Conversely, the closer the connection the more readily leave should be given by the court.

Shenifa Alidina