Case Law Update

Children – Public Law

28 February 2023

Re S (Children: Party Status) [2022] EWCA Civ 1717 (per Peter Jackson, LJ)

This appeal concerned whether the refusal of an application by the Appellant to become a party to care proceedings was wrong. The appeal was allowed.

Relevant law on joining a party to care proceedings as set out by Jackson LJ:

Family Proceedings Rules 2010 12 and 12.4: provide that the court may, at any time, direct that a person may be made a party to care proceedings and may give consequential directions about the management of those proceedings.

With reference to Re B (A Child) [2012] EWCA Civ 737:

Black LJ: sets out useful judicial guidance on how this power should be used and how s.10.9 of the Children Act 1989 should be used noting that, while s10.(9) highlights certain relevant factors, it is not a test and the court has a broad discretion in its conduct of the case.

Jackson LJ drew attention to a factor identified by Black LJ, namely the purpose that party status would serve. He said this might be described as the “arguable case” test, but made clear such a test is “not the substitute for a broad, practical assessment that ensures a fair and efficient termination of the issues in the case”.


In allowing the appeal the court made clear the appeal was particular on its facts and that the features of the case made it an unusual one that justified the “unusual order”.

The appellant, Mr B and the mother (M) had met in 2014, cohabited and separated. M became pregnant. Mr B was not the father. M moved back in with Mr B and remained there with her child (X) when he was born.

Mr B had supported M throughout her pregnancy, been present at X’s birth and was involved in his care, developing a close bond with him.

X was aged 5 at the time of the appeal.

M had obtained her own tenancy and in 2021 and gave birth to another child, Y, X’s half brother. Mr B was not Y’s father.

In 2022 M’s mental health deteriorated and she had been detained under s.3 MHA 1983. Both children moved in with Mr B. M wanted Mr B to care for both children but Y was placed in foster care.

M remained in hospital for about four months.

Mr. B was formally assessed by the local authority as a connected person under regulation 24, leading to a positive assessment. The LA issued care proceedings in respect of the children and an ICO was made on the basis of an interim care plan that X remained with Mr B who was to be assessed as a special guardian.

Both the regulation 24 assessment and the special guardianship assessment “described the strengths of the relationship between X and Mr B.

Despite this X was taken into foster care following a hearing of which Mr. B was given no notice.

The LA had said it was relying on further information about Mr B to justify separation from him and to place X in foster care, separately from Y.

The interim care plan provided for Mr B to have contact with X for only 90 minutes a month.

The care plan was approved by the court with no provision for Mr B to be served or heard.

Jackson LJ said in his judgment:

We have seen nothing to show that X’s safety and welfare required his immediate removal without Mr B being told that it was proposed, without him being given any explanation, and without the court giving him an opportunity to be heard before or after the event. To this day he has never been served with the statement that led to the removal”.

The question was one of whether the removal was fair. [para 10].

The LA had filed its SG assessment and a heavily redacted version was given to Mr B who then made his application to be joined as a party to the care proceedings.

Mr B’s application was heard by a Recorder and dismissed. The order included the following recital:

Giving judgment, the Recorder refused Mr B’s application, identifying evidence that would inevitably cause any application made by him for leave to bring a Section 8 order to fail and therefore confirming that there was no role for him to play in the proceedings [12]

The suggestion that Mr B could be made an intervenor was also rejected on the basis that:

Mr B could contest what was it about him and file a statement, but would not need to be a party or an intervenor to do so.

After considering s.10(9) CA 1989 the Recorder had concluded that there was no role for Mr B to play in the proceedings and so dismissed his application to be joined as a party.

Mr B sought permission to appeal, making it clear that he had no intention of competing with M but wanted to put his case before the court in the event that M was unable to resume care of X.

If that was the case, he would seek to be X’s carer as either a special guardian, or under a “lives- with” order. Either way, he would seek more contact. Mr B was happy to have limited involvement in the proceedings.

He set out four grounds of appeal as follows:

The recorder had failed to properly consider and assess the factors in s.10(9) and failed to assess whether Mr B had an arguable case [16]

The determination was unfair and gave Mr B no opportunity to challenge [17].

The recorder was wrong to exclude Mr B when there was no evidence to do so [18].

The recorder placed too much weight on the alternative options available to Mr B to put his case.

These argument were all rejected by the respondents and the following points were made in opposition:

The recorder had a discretion and was entitled to find Mr B had no arguable case.

Mr B should have applied for a special guardianship order or a s.34 application for contact.

Making Mr B a party would cause disruption to the proceedings and increase their complexity and lengthen the final hearing.

Mr B should wait until M’s ability to care for X has been decided.

Mr B should file a statement setting out his challenges to the SGO assessment, his contact proposals and attend the FH and be allowed to give evidence.


Per Jackson LJ:

In approaching Mr B’s application, the court needed to consider the broad contours of these care proceedings. The best outcome would be for M to care for both children, but there was no certainty of this at the time of the recorder’s decision. If that was not possible, the local authority would likely seek a placement order for Y. Such an option was not available to X, the only alternative to foster care being a placement with Mr. B. In any event, the issue of contact was likely to arise.

Jackson LJ reviewed two difficulties with the order under appeal:

The recorder could not legitimately determine on the basis of the available information that  any application made by Mr B would inevitably fail and that there was, therefore, no role for Mr B to play in the proceedings.

Jackson LJ went on to address the salient features that should have led the court to grant  the application and then went through what the recorder should have identified with the assistance of s.10(9) CA 1989 [24] & [25]


X’s relationship with Mr B, particularly in light of his special needs

The lack of any other important relationship apart from his mother

The unproven allegations against Mr B

The requirements of natural justice relating to the circumstances of X’s removal into foster care

The benefit to the court of having all available options before it for X’s sake

The inability of Mr B to participate effectively without party status when all other parties had rejected his case.

The need to avoid delay.


With reference to s.10(9), the recorder should have identified (a) that the nature of the proposed intervention was appropriate…. whether or not it would ultimately be successful, (b) that the applicant had an unusually strong connection with the child for someone who is not a relative, and (c) that there was no significant risk of intervention harming the child.

It is undoubtedly the case that Mr B is “second best to an actual parent” but that did not make his case unworthy of consideration.

The local authority’s case had abruptly changed ……the mother had, at least ostensibly, changed her position towards Mr B after years of reliance on him.

Had the recorder considered these matters squarely, he would in my view have been bound to conclude that Mr B had an arguable case sufficient to satisfy the test for joinder.

[26] The second difficulty is that the options identified by the recorder do not seem consistent with his substantive decision. Having found that Mr B had no legitimate role to play in the proceedings the recorder stated he could challenge the assessment and could file a statement or obtain an independent assessment or both. However, he did not explain how that could happen or why his main conclusion would be fatal to any such attempt.

Further if this was a meaningful right the court should have addressed it and given any necessary directions.

 The respondents’ arguments were rejected [27] and an order made allowing the appeal and Mr B was joined as a party to the care proceedings [28].

The matter was listed for a CMH.

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