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Court of Appeal urges councils to take prompt action in adoption cases where there is uncertainty about paternity

The Court of Appeal has urged local authorities to take timely action where there is a need to determine a child’s paternity in adoption cases.

In L (Adoption: Identification of Possible Father) [2020] EWCA Civ 577 the court heard an appeal from a ruling by HHJ Marston concerning the intended adoption of a child.

The child’s mother has two older children whose father is Mr C. Her third child K, is now aged about nine months.

The mother told her family that Mr C was also K’s father but asked for the child to be placed for adoption at birth.

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She refused to consent to social services contacting Mr C, but eight days later told the social worker that Mr C was not K's father, “but that she had been born as the result of what she described as a drunken one night stand with a man whom she could not identify”.

Lord Justice Peter Jackson, who heard the case with the President of the Family Division and Lady Justice Nicola Davies, said: “On 16 December 2019, the local authority belatedly applied for a declaration that it need not take any further steps to identify or locate K's father or paternal family. At the same time it sought an order for DNA testing of Mr C.

“It was explained to us that the inconsistency between these applications was due to a breakdown in communication within the local authority, and that by the time the matter came before the court the local authority's position was that K's paternity needed to be clarified and that if Mr C was the father he should be consulted about her adoption.”

HHJ Marston directed the mother to provide contact details for Mr C but she then filed a witness statement expressing her fear at Mr C's response if told of K's birth. The judge gave a direction for DNA paternity testing involving K and Mr C.

The mother then said that DNA testing of herself and her other children would be sufficient to establish that Mr C was not K's father.

The case resumed on 5 February, when the judge gave an extempore judgment rejecting the suggestion of sibling testing and confirming his previous order to provide contact details for Mr C.

Judge Marston said: “It is a difficult balance to strike because one is instinctively sympathetic to the mother in these circumstances, however, it seems to me, what I need to do is to be instinctively sympathetic to [K] and her best interests and to establish absolutely, beyond doubt, what her parentage is, because either she then needs to be adopted as quickly as possible or if there is some alternative placement in the family, that needs to be ascertained as soon as possible.”

Peter Jackson LJ sad: “The judge was right to resist the proposal for sibling testing.

“Even if the testing did not produce unexpected results, it would in the circumstances of this case be a disproportionate interference with the rights of the other children and their father. Those other children would unwittingly become involved in the secrecy requested by the mother. The factors speaking against informing Mr C of K's birth are not by any means strong enough to justify taking that course.”

The Court of Appeal judge added that:

  • As sibling testing was not an appropriate alternative means of establishing paternity in this case, the mother's argument that it was unnecessary to seek standard paternity testing fell away. "The rights and interests of all parties must be considered and balanced."
  • When making the central decision to refuse to endorse adoption without clarification of K's paternity, the judge had all relevant factors in mind and he could not be said to have given inadequate weight to factors relied on by the mother or excessive weight to factors relied on by the other parties. "He took a balanced view of the evidence and made appropriate allowances for the mother's position. He reminded himself that there was an issue about paternity but he clearly found that there was a substantial possibility that Mr C is K's father, as the mother had repeatedly said, not only to professionals but to members of her own family, who were in a better position to know whether that was plausible. In the end he found that the overriding factor was that K, whatever her future may hold, should be provided with as much knowledge of her parentage as possible, so that she can know throughout her life whether she has siblings and whether their father is her father. The judge's decision was a proper one in the circumstances of the case."

Peter Jackson LJ regretted “it has taken so long for this issue to be resolved” and noted the court had previously emphasised “a local authority, faced with a baby that may require adoption…will be acutely aware of the need for a speedy decision…we hope that where applications to court are required local authorities will from now on ensure that they are made during a child's earliest months so that swift and appropriate decisions can be taken in these difficult cases”.

Mark Smulian

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