Judge rules birth father should have been notified of existence of child but accepts he cannot force mother to reveal his identity

A Family Court judge has said she cannot compel a mother to disclose the identity of a toddler’s birth father, even though he should have been told of the child’s existence before adoption proceedings are completed.

In M (adoption - notification of birth father) [2023] EWFC 17 HHJ Vincent, sitting as a deputy High Court judge, said that while the local authority involved should have taken more effective steps to determine the father’s identity, it was not now required to do anything further.

The case concerned 20-months old M, who was placed with prospective adopters when he was a day old. 

“They have devoted themselves to him since the day he came to live with them, giving him loving, consistent, attentive care,” the judge said.

“He is thriving. They love him, and long for his place in their family to be secured by an adoption order.”

M’s mother C was 21 when she gave birth and was no longer in a relationship with the birth father and did not want him to know of her pregnancy, or to be involved in decisions she made for M. 

C said social workers supported her in this and told her that the decision was hers to make, and her wish for confidentiality would be respected.

HHJ Vincent said: “If this is what C was told, it misrepresents the law. Both domestic and European law in this area stress the importance of engagement of the wider family in the adoption process. 

“Any request for an adoption that excludes a father or close family members should be closely scrutinised. The local authority could not compel C to disclose the birth father’s identity, but did have a duty both to critically analyse C’s reasons for refusing to disclose, and if considered appropriate, to make its own independent enquiries as to the birth father’s identity.” 

The local authority subsequently asked the court to consider making directions that might enable the father to be identified, while C “asks me to draw a line under this whole process, for no further steps to be taken towards identifying M’s birth father, and for the proceedings to come to an end”, the judge said.

“On C’s behalf it is argued that the physical, psychological and social impact on her, of the birth father discovering not only the fact of M’s existence, but the secret she has withheld from him all this time, will be so traumatic as to be unmanageable for her.” 

The Children’s Guardian said M had the right to know who his father is, and some information about him.

HHJ Vincent noted C argued the father was not a safe person for M, “but there is no admissible evidence that this is or even might be the case. 

“The court cannot rule out notification to the birth father on the basis of unsubstantiated assertions.”

She observed that someone in the father’s position “could well be expected to feel anger and show some animosity towards a mother who has kept [the birth] secret from him not just for a few weeks or months, but for a period of two years.”

The judge questioned whether, if the father were not notified “what if the secret comes out, not in a matter of months, but after five years or ten years, or twenty? 

“Would not the burden of carrying the secret, the fear of discovery and the fear of the reaction, not just from the birth father, but from M himself, intensify over time?”

She said no party to the case had proposed that she should compel C to provide the father’s name “either by threat of punishment, cross-examination or otherwise”, and that the local authority had no reasonable prospect of identifying him solely from a first name and the university where he studied - which was all the information available to it.

HHJ Vincent said she understood why the Children’s Guardian said enquiries about the father should be made, “but if I pursued this, I would be making an order not knowing to whom it was addressed, what specifically I was asking for, or how that would achieve the desired result”. 

This process would cause further delay and “to embark on all this, when I have no evidence that it would achieve the desired result, is disproportionate”.

She said: “The decision I made was that the birth father should be notified. But if the birth father cannot be identified, and I am satisfied that there are no further steps that can reasonably be taken, that notification cannot happen.”

The local authority had by the end of the proceedings taken all reasonable steps to identify the father and no purpose was served by further delay.

“I cannot compel C to reveal his identity,” HHJ Vincent said. “In all the circumstances, the local authority is not required to take any further steps to discover the father’s identity or to notify him of the application for adoption.”

Mark Smulian