Family Division judge sets out future lessons for non-notification cases after dismissing application by local authority

January 18, 2021

A High Court judge has set out lessons for the future in non-notification cases, after refusing to endorse a local authority’s decision not to disclose the existence of a 10-month-old boy to his father.

The mother had decided to relinquish the boy, W, for adoption before he was born. She believed she could not give him the care he needs. She did not want the father, or any member of the wider families, to be told of W’s birth or the adoption proceedings, or to be considered as possible carers.

On 20 September 2020, the local authority – with the mother’s support – applied for endorsement of its decision not to disclose W’s existence to the father in in proposed adoption proceedings, or at all.

It also applied for an order under the inherent jurisdiction endorsing its decision not to disclose the child’s existence to the maternal grandparents.

The Children’s Guardian opposed the applications.

In A Local Authority v JK & Anor [2021] EWHC 33 Mr Justice Peel set out the factual background to the case and rejected the local authority’s applications.

The judge said there had been an unacceptable delay in issuing the applications until W was 7 months old, which had “unfortunate consequences”:

a) The mother believed, based on what she had been wrongly told by the local authority, that there was no question of the father being identified and notified. “The longer the passage of time, the less reason she had to think otherwise and the greater the shock when told that the court would be invited to make the relevant decision.”

b) The local authority formed the early view that adoption was the only realistic option for this child. The passage of time simply reinforced that view. “I quite understand that it attempted to assist the mother at an immensely difficult time for her, and has throughout been guided by what it believe is in the interests of W, but in my view there has been a loss of focus. In particular, the local authority did not sufficiently appreciate the importance of the notification issue, Cases A, B and C [2020] EWCA Civ 41, and the competing rights and interests of the mother, W, the father, and wider families.”

Other reasons given by the judge included:

The evidence presented about the father was limited, but in Mr Justice Peel’s view, even on the mother's presentation, it was 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. “The concerns raised by the mother are not of such gravity as to remove him entirely from the equation now.”
He did not consider that the evidence justified either the maternal grandparents or (conceivably, 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.
The mother's relationship with her parents, in particular her mother, did not appear to be irredeemably broken down. “She told the Guardian that had she known how these 10 months would unfold, she would have had the company of her mother at the birth. I have also been told that during lockdown the mother lived with her parents, albeit because her tenancy had come to an end. These are positive relationship indicators.”
The relationship between the mother and father was casual, but it lasted for some 3 ½ years, taking place in their local village. It was not wholly insubstantial. “I note also that although her parents did not meet the father, the mother told them of the relationship.”
There was a lingering concern that if the mother at some point were to tell her parents (or perhaps a friend) about the birth and adoption, it was possible that the father and his family would in turn find out. “I emphasise that the mother has made plain she would do no such thing but, however unlikely, an unplanned, unexpected, unmanaged event like this could cause incalculable distress to many people.”
There was the possibility that the prospective adoptive parents might elect to withdraw from the process, although they had not yet ruled themselves out and were not likely to do so imminently. “But that, while an important consideration, does not in my judgement outweigh the considerations pointing the other way.”
The mother’s anxiety, “profound though it may be”, 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 impact on the mother, while distressing and unsettling, was unlikely to be disastrous “and I would hope and expect that proper support will be offered by the local authority to address any issues.”
A determination in the local authority's favour inevitably would lead to a total severance of W's relationship with his birth families, without any of them (bar the mother) having any say or being considered beyond the merest superficiality. “Should this come to the attention of the father and/or wider family at some later date, they would, in my view, legitimately complain of having been completely written out of W's welfare decision making.”

The judge said: “In my view the Article 8 rights of the mother and W are clearly engaged. The father's casual relationship with the mother and lack of parental responsibility militate against a conclusion that he has formal Article 8 rights, but he clearly has an interest which must be weighed in the balance. The wider families, particularly the maternal family, are also interested persons. Weighing up all the relevant and competing considerations, I conclude that the father should be identified and notified, and the wider families considered.

“The applications are therefore dismissed. Of course, adoption may yet be the outcome, but if so, it must be reached after all realistic options are explored.”

Mr Justice Peel went on to issue the following lessons for the future in non-notification cases:

"48. In Cases A, B and C the Court of Appeal emphasised the urgency required in making a Part 19/Rule 14.21 application. I have noted that in Case A the application was made 4 months after birth and was described as "belated". Here the application was made 7 months after birth. This was an utterly unacceptable period of delay. Had the application been made promptly, the various difficulties which were explored during this hearing would not have arisen. Worse, the local authority appear not to have considered properly or at all the legal requirements in a case of this nature or, if it did, it inexplicably did the exact opposite. And piling error upon error, the local authority assured the mother that it did not need to make a non-notification application, only to do so several months later.

49. It is obvious 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.

50. The exhortation in Cases A, B and C not to give a mother false assurances should be scrupulously followed. This case has shown the harmful consequences of failure to do so.

51. If an application is pursued swiftly and granted on the merits (as in Cases B and C), then the local authority and a mother will have early certainty which will enable swift planning and progress to adoption.

52. 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. By contrast, the delay here has caused the prospective adoptive parents to question their involvement, and set back the public law proceedings, which will determine W's welfare, by months.

53. It has been said time and again that delay in proceedings usually runs contrary to the needs of a child. Sometimes, delay is unavoidable. Sometimes it is planned and purposeful and the delay leads to the greater goal of an outcome consistent with the child's welfare. But delay in notification proceedings is usually avoidable and unnecessary, absent good reason to the contrary.

54. It would not be appropriate for me to offer any more than tentative guidance as to how swiftly an application of this nature should be brought. Lord Justice Peter Jackson at paragraph 86 of Cases A, B and C suggested that the decision should be taken "at a very early stage". The variety of possible circumstances does not lend itself easily to a one size fits all formula. It may be, for example, that a mother after birth is beset by physical and/or mental health problems which demand breathing space before a local authority embarks on a non-notification application. But I suggest that, absent good reason to the contrary, a non-notification application should ordinarily be brought within a matter of weeks of the birth, rather than months."