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Adoption and notification of the father and relatives

Francesca Massarella reports on a case concerning whether the father and maternal grandparents ought to be notified of a child’s birth or subsequent adoption proceedings.

The proceedings in A Local Authority v JK and W (Adoption: Notification of Father and Relatives) [2021] EWHC 33 (Fam) (Mr Justice Peel) concerned W, who was 10 months old at the time of the hearing. The mother (M) decided to relinquish W for adoption before he was born because she believed she was unable to provide the care he required. She did not wish for the father (F) or any member of the wider families, to be informed of W’s birth or the adoption proceedings, or to be considered as possible carers.

On 8th September 2020, the local authority applied for:

i. an order under FPR Part 19 and rule 14.21 endorsing its decision not to disclose W’s existence to F in proposed adoption proceedings or at all; and

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ii. an order under the inherent jurisdiction endorsing its decision not to disclose his existence to maternal grandparents.

These applications were supported by M but opposed by the Guardian.

M met F in 2016 and F is about 10 years older than M. F and M had an on/off casual relationship for 3½ years.

M became pregnant in 2018 but chose to terminate the pregnancy. Having made that decision, but before the medical procedure, she informed F whose response was to block her on social media. She concealed the pregnancy and the termination from her family.

In December 2019, M again found out she was pregnant but concealed the pregnancy from F. Having decided to terminate the pregnancy, she attended a clinic in January 2020 but discovered that she was beyond the legal time limit for abortion and the procedure could not take place

Shortly thereafter, M contacted the local authority to express her for her child to be adopted. From that point onwards, the local authority commenced its planning with a clear direction towards adoption.

On 19th February 2020, W was born. On the subsequent completion of the birth certificate, F was not named and accordingly does not have parental responsibility. Consistent with M’s wishes, W was immediately placed by the local authority with foster carers.

Rule 14.21, as amended by SI 2020/135, was set out:

Notice to fathers without parental responsibility

“Where no proceedings have started an adoption agency or local authority may ask the court for directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption”.

The explanatory notes to the SI explain that the change was effected to clarify that directions under rule 14.21 FPR 2010 could be given by the Family Court as well as the High Court.

There was, however, no rule specifically designed for non-notification application in respect of close relatives. The consequence was rather unsatisfactory as frequently a local authority will seek directions both in respect of the father without parental responsibility and close family. The position is that the application in respect of the putative father should be made to the Family Court under Rule 14.21 whereas the application in respect of close relatives should be made to the Family Division of the High Court under the inherent jurisdiction. Peel J suggested that the Rules Committee may wish to look at Rule 14.21 to consider whether it could be enlarged to include other persons, such as close family members.

The Court cited Cases A, B and C [2020] EWCA Civ 41. These three appeals concerned babies whose mothers concealed their pregnancies and did not want the fathers and other relatives to know of the births. The question was whether the local authorities and the court should notify the fathers or relatives before plans for the children’s future are made and put into effect.

Peter Jackson LJ considered that, for social workers and courts, these were not easy decisions. They had to be made without delay, on incomplete information, and in the knowledge of the profound consequences for everyone concerned. The law aimed to distinguish those cases where a ‘fast-track’ adoption without notification of relatives is lawful from the majority of cases where the profound significance of the decision for the child demands that any realistic alternatives to adoption are given proper consideration.

The principles governing decisions as to whether a putative father or a relative should be informed of the existence of a child who might be adopted was summarised as follows:

1. The law allows for ‘fast-track’ adoption with the consent of all those with parental responsibility, so in some cases the mother alone. Where she opposes notification being given to the child’s father or relatives her right to respect for her private life is engaged and can only be infringed where it is necessary to do so to protect the interests of others.

2. The profound importance of the adoption decision for the child and potentially for other family members is clearly capable of supplying a justification for overriding the mother’s request. Whether it does so will depend upon the individual circumstances of the case.

3. The decision should be prioritised, and the process characterised by urgency and thoroughness.

4. The decision-maker’s first task is to establish the facts as clearly as possible, mindful of the often limited and one-sided nature of the information available. The confidential relinquishment of a child for adoption is an unusual event and the reasons for it must be respectfully scrutinised so that the interests of others are protected. In fairness to those other individuals, the account that is given by the person seeking confidentiality cannot be taken at face value. All information that can be discovered without compromising confidentiality should therefore be gathered and a first-hand account from the person seeking confidentiality will normally be sought. The investigation should enable broad conclusions to be drawn about the relative weight to be given to the factors that must inform the decision.

5. Once the facts have been investigated the task is to strike a fair balance between the various interests involved. The welfare of the child is an important factor but not the paramount consideration.

6. There is no single test for distinguishing between cases in which notification should and should not be given but the case law shows that these factors will be relevant when reaching a decision:

(1) Parental responsibility.

(2) Article 8 rights.

(3) The substance of the relationships.

(4) The likelihood of a family placement being a realistic alternative to adoption.

(5) The physical, psychological or social impact on the mother or on others of notification being given.

(6) Cultural and religious factors.

(7) The availability and durability of the confidential information.

(8) The impact of delay.

(9) Any other relevant matters.

7. It has rightly been said that the maintenance of confidentiality is exceptional, and highly exceptional where a father has parental responsibility or where there is family life under Article 8. However, exceptionality is not in itself a test or a short cut; rather it is a reflection of the fact that the profound significance of adoption for the child and considerations of fairness to others means that the balance will often fall in favour of notification. But the decision on whether confidentiality should be maintained can only be made by striking a fair balance between the factors that are present in the individual case.

The local authority and M pursued broadly the same case:

  1. W is now 10 months old. To notify F and/or wider family members, and embark on the resultant inquiries and investigations, would inevitably lead to a delay before his future is settled.
  2. The prospective adopters have indicated that they are presently still willing to be considered, even if notification takes place, but they make no guarantees for the future if there is significant delay.
  3. M’s views are clear. She wishes for W to be adopted, and for the facts of her pregnancy, the birth, and his adoption to be kept confidential and not notified to F or the wider families.
  4. The impact on M of notification to F would be deeply damaging. She would suffer very considerable anxiety and would be exposed to a significant risk of mental health deterioration. She continues to feel anxious and overwhelmed and experiences suicidal thoughts.
  5. The relationship of F and M was at its highest a string of casual liaisons and not one of real substance. M says: “Looking back, I can now see that my relationship with [F] was abusive although not physically abusive”, although little specific detail is given of F’s behaviour to M.
  6. F is not a realistic potential carer. He lives with his parents, has an irregular income and was a drug user when M knew him. His reaction to the pregnancy in 2018 suggests he would have no interest in W. There is some suggestion of mental health issues, although no details are given.
  7. M’s wider family are not likely to be potential alternative carers. Her mother is 58 and in full-time employment. Her father, aged 67, is retired but works part-time. M has a difficult relationship with her parents and considers that there is a risk of a complete breakdown between them.
  8. Similarly, F’s parents do not represent a realistic alternative. His mother has diagnosed schizophrenia and is cared for by her husband. She and her husband are said to be in financial difficulties.

The Guardian’s position was that W’s Article 8 rights entitled him to exploration of the possibility of being cared for by, or knowing, his birth family; the relationship between M and F was not so limited as to justify non-notification; the maternal grandparents could not be entirely ruled out as cares at this stage, although the paternal grandparents may be less viable; F’s personal difficulties were not such as to rule him out as a potential carer; and alternatives to adoption could not be excluded at this stage.

The Court refused the local authority’s applications and concluded that F should be identified and notified, and the wider families considered, for the following reasons:

  1. There was an unacceptable delay in issuing the application until W was about 7 months old.
  2. The evidence presented about F was limited but not sufficient for him to be excluded on a summary basis from being a possible carer, or if not a carer, from playing some other more limited role in W’s life. In the circumstances of the case, to proceed to adoption without conducting a thorough inquiry into his circumstances, permitting him to advance a case as to how he might make a meaningful contribution to W’s life and permitting him to put forward options which fall short of adoption, would be disproportionate and unjust.
  3. The evidence did not justify the maternal grandparents or (conceivable, albeit rather less likely) the paternal grandparents being summarily excluded from consideration at this stage, whether as carers or as people whom W should have the opportunity of seeing, and with whom he may benefit from developing a relationship.
  4. M’s relationship with her parents did not appear to be irredeemably broken down.
  5. The relationship between M and F was casual but it lasted for some 3 ½ years. It was not wholly insubstantial.
  6. There is a lingering concern that if M at some point were to tell her parents (or perhaps a friend) about the birth and adoption, it is possible that F and his family would in turn find out.
  7. There is the possibility that the prospective adoptive parents might elect to withdraw from the process.
  8. Whilst the Court accepted M was experiencing considerable distress and anxiety, it considered that such appeared to be primarily a consequence of the birth and giving her son up for adoption rather than the non-notification proceedings per se. The Court concluded that the impact on M, while distressing and unsettling, was unlikely to be disastrous and Peel J hoped and expected that proper support would be offered by the local authority.
  9. The Court considered that a determination in the local authority’s favour would inevitably lead to a total severance of W’s relationship with his birth families, without any of them (bar M) having any say or being considered beyond the merest superficiality. Should this come to the attention of F and/or wider family at some later date, they would legitimately complain of having been completely written out of W’s welfare decision making.

Peel J concluded his judgment by suggesting some lessons for the future in non-notification cases, namely, that in a case of this nature, a local authority should ensure that it explains carefully, and sensitively, to a mother every staging post of the proposed adoption process and the non-notification procedure, setting out the competing factors and considerations.

The Court considered that an application made 7 months after birth was an “utterly unacceptable period of delay”. If an application is pursued swiftly and granted on the merits, then the local authority and a mother will have early certainty which will enable swift planning and progress to adoption. If, however, the application is pursued urgently but rejected, then little time will have been lost in pursuing adoption proceedings in the usual way. Put simply, everyone will know where they stand at the outset.

Peel J reiterated Peter Jackson LJ’s comments at paragraph 86 of Cases A, B and C, that the decision should be taken “at a very early stage”.

Francesca Massarella is due to begin pupillage at Spire Barristers in September 2021.


-Full judgment available at: https://www.bailii.org/ew/cases/EWHC/Fam/2021/33.html

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