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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> A, B And C (Adoption: Notification of Fathers And Relatives)  EWCA Civ 41 (29 January 2020)
Cite as:  EWCA Civ 41,  Fam 325,  2 FCR 567,  3 All ER 747,  1 FLR 1157,  WLR(D) 218,  3 WLR 35
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ON APPEAL FROM THE FAMILY COURT
His Honour Judge Marston BS46/2019
His Honour Judge Willans ZW19C00250
Her Honour Judge Carr QC SE19C01107
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PETER JACKSON
LADY JUSTICE NICOLA DAVIES
| Cases A, B and C (Adoption: Notification of Fathers and Relatives)
James Cranfield (instructed by Battrick Clark Solicitors) for the Appellant Child by his Children's Guardian
Stuart Fuller for the Respondent Local Authority
Dorian Day & Barbara Hecht (instructed by Hecht Montgomery Solicitors) for the Appellant Mother
Tahmina Rahman & Amy Slingo for the Respondent Local Authority
Darren Howe QC & Charlotte Wilce (instructed by Foys Solicitors) for the Appellant Mother
Frances Heaton QC & Penelope Stanistreet-Keen for the Respondent Local Authority
Catherine Wood QC & Sara Anning (instructed by Howells LLP) for the Respondent Child by her Children's Guardian
Hearing date: 21 November 2019
Crown Copyright ©
Lord Justice Peter Jackson:
Section 1 A brief description of each case
Section 2 The law
Section 3 Analysis and Summary
Section 4 The three appeals.
- She has a history of depression for which she takes medication and did not feel physically or emotionally capable of caring for him.
- The father has also suffered with mental health issues.
- She had terminated two previous pregnancies, both by A's father, with his agreement.
- He would agree with the decision for A to be adopted as he would not want to be involved in the child's life.
- Her own mother would agree with the decision to adopt A. She too has mental health issues and her brother has learning difficulties. Other maternal family members are too old to care for A.
- If she cannot look after B herself, she would rather she was adopted than be placed in the care of her family, so that B should not experience the abuse she herself suffered.
- She is scared of her family's reaction if they found out that she had a child outside wedlock with someone of a difference race and cultural heritage.
- The family would therefore be unlikely to respond positively to being told of B's existence, and it would cause them needless upset and distress.
- An assessment of her family would be likely to be negative and little benefit would be gained.
- The father (the first man so named) did not want to play any part in the baby's life and even booked a termination for the mother. He was violent towards her while she was pregnant. He is involved with drugs and gangs and is currently serving a long prison sentence. She is scared of what he would do if she shared information about him with the local authority.
- Caring for C would remind her of the rapes.
- She and the father have an unconventional relationship. Although they are married he works away, was infrequently at home and rarely provided care for the children. They permanently separated in September 2018, following the rapes, but the father visits the home to see the children.
- The father has a bad temper and on one occasion punched and damaged a door. He has been intimidating and controlling. She is scared that he would assault her if he found out that she had kept C's birth a secret.
- He would humiliate her by informing members of the local community. She would then have to leave the area with all her children.
- He would not be willing or able to care for C.
- There is no other maternal or paternal family member who would be willing or able to care for C.
"Where no proceedings have started an adoption agency or local authority may ask the High Court for directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption."
The procedure for bringing such an application is set out in Part 19: see rule 19(2)(c).
"1. Considerations applying to the exercise of powers
(1) Subsections (2) to (4) apply whenever a court or adoption agency is coming to a decision relating to the adoption of a child.
(2) The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life.
(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.
(4) The court or adoption agency must have regard to the following matters (among others)—
(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),
(b) the child's particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,
(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.
(5) In placing a child for adoption, an adoption agency in Wales must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.
(6) In coming to a decision relating to the adoption of a child, a court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.
(7) In this section, "coming to a decision relating to the adoption of a child", in relation to a court, includes—
(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 or 51A (or the revocation or variation of such an order),
(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,
but does not include coming to a decision about granting leave in any other circumstances.
(8) For the purposes of this section—
(a) references to relationships are not confined to legal relationships,
(b) references to a relative, in relation to a child, include the child's mother and father.
(9) In this section "adoption agency in Wales" means an adoption agency that is—
(a) a local authority in Wales, or
(b) a registered adoption society whose principal office is in Wales."
European case law
"Where it concerns a potential relationship which could develop between a child born out of wedlock and its natural father, relevant factors include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the father to the child both before and after its birth."
""Family life", within the meaning of Article 8, includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relatives may play a considerable part in family life"
Domestic case law
"3. The procedure for the contested adoption of a child is one of the most anxious and difficult in the civil jurisdiction, for it deals with conflicting human needs and wishes which cannot be fully reconciled. This appeal is concerned with one aspect of that process, in which the dilemma is particularly acute, since the demands not only of human relationships but also of procedural fairness must be placed in the scales."
And, as the last of a series of five propositions of principle:
"46. Non disclosure should be the exception and not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non disclosure only when the case for doing so is compelling. "
In Re A , a decision to which I refer below, Black LJ at  described Lord Mustill's principles as:
"… illuminating when considering the more fundamental prior question of whether a parent should be informed of the very existence of the proceedings or even that they have a child."
"14. It is clear that the House of Lords in Re D was well aware of the European Convention and its jurisprudence…
15. In the end, the issue still comes down to striking a fair balance between the various interests involved: the interests of all parties, but particularly the birth parents and the children themselves, in a fair trial of the issues, in which the evidence on each side can be properly tested and the relevant arguments properly advanced before the court; the interests of the children, their birth family and their prospective adoptive family, in protecting their family and private lives from unjustified interference; and the interests of the children in being protected from harm and damage to their welfare, whether in the short, medium or longer term."
"The question next therefore arises as to how I should exercise that discretion. There has been canvassed before me the question of whether, in deciding how to exercise that discretion, this question is a question with respect to the upbringing of the child. If it is, then the child's welfare is the court's paramount consideration. If it is not, then the child's welfare is not the paramount consideration though, of course, in considering any question relating to a child, the welfare of the child is likely to play a very large part in the court's thinking. There is, I am told, no authority… I have been reminded about the line of cases relating to the grant of leave to bring proceedings and the weight of authority in favour of the view that such applications… are not questions with respect to the upbringing of a child, and it is submitted by analogy that this question is not a question with respect to the upbringing of a child.
I agree with that submission. I think that it is not and that accordingly this child's future welfare, though it is plainly an important consideration, is not the paramount consideration, Thus, I am entitled to consider, quite independently of the welfare of the child, the effect on other persons, namely that child's family."
He dispensed with service of the proceedings on the father.
"22. It is as clear that s.1 of the Act does not apply to an application for leave to apply to revoke a placement order under s.24(2) as it is that it does apply to an application for leave to oppose the making of an adoption order under s.47(5)…"
"25. I cannot explain why Parliament should have provided that, in the discretionary exercise which arises under s 45(2) of the 2002 Act, the child's welfare should be paramount but that, in the discretionary exercise which arises under s 24(3), it should not be paramount. I can think of no situation other than under s 47(5) in which the facility to participate in proceedings relating to a child is governed by the paramountcy of a child's welfare…"
"26. So, it is well established that what constitutes a fair process for a decision relating to the upbringing of a child is not governed by a test directed to what is in the best interests of, or what will best promote the welfare of, the child."
"The father's case, put at its simplest, is that he is the child's blood father, the mother does not wish to care for him and that he and his future wife are the natural and the best people to care for S. He is, most naturally, deeply affronted that he was not told about the existence of his son and that the failure to tell him, by reason of the time that elapsed, has prejudiced his claim to look after his child. Although he is undoubtedly committed to looking after S, it is a fact that has to be faced that he and his fiancée, again through no fault of their own, are untried as parents and would be faced with caring for a small boy who, on any basis, does not know them and would be deeply upset at the concept of being removed from the only family that he knows, however carefully such a move was planned."
That case were clearly agonising for the adopters and for the father. I mention it, not for its outcome, but as an illustration of the consequences that may arise at a later stage if notification is incorrectly withheld.
"The dilemma must, in fact, be a very old one. Although no statistics are available, many children must have been adopted over the years, outside their birth families, with no knowledge by, or investigation of, other members of the birth family. Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgement, a real risk that more pregnant women would seek abortions or give birth secretly to the risk of both themselves and their babies… There is, in my judgment a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes."
Holman J then reviewed the procedural obligations imposed by domestic law and the Human Rights Convention and held that they did not go so far as to require the local authority or the Guardian to consult and inform the family of the parent. It would constitute a grave interference with the mother's right to respect for her private life for a public authority to breach her privacy by imparting information given in confidence to people from whom from the very first she had wanted to keep it a secret. A balance had to be performed between competing rights under Article 8 and on the facts of the particular case it came down in favour of preserving the confidence. However, in conclusion, Holman J stated:
"I wish to stress that it is a conclusion reached on the particular facts of this case. The same reasoning may, in practice, apply to similar cases. But this judgment is not intended in any way to suggest that the extended family can simply be ignored on the say-so of a mother. On the contrary, there should normally be wide consultation with and consideration of the extended family; and that should only be dispensed with after due and careful consideration, as has happened in this case."
"I observe that this decision is very much the exception rather than the rule. Since the coming into force of the Human Rights Act 1998, quite apart from the position under the domestic law, the majority of cases will require natural fathers to be informed as regards adoption/freeing applications… howsoever unpalatable this may be for the mother or problematic for the adoption agency, and even though this may mean informing the father of the existence of a child of whose existence he was otherwise unaware."
"(48) The European Court in Keegan v Ireland (1994) 18 EHRR 342 made it clear that a father who has had a substantial relationship with the mother, including cohabitation, should be in a broadly similar position to a father whose marriage has broken down prior to the birth of their child. In my judgment, in such a case the desire of the mother for confidentiality and therefore non-disclosure to the father of the proposed adoption proceedings cannot prevail over notice to the father unless there are strong countervailing factors. Among such countervailing factors might be for instance rape, or other serious domestic violence that placed the mother at serious physical risk. There may well be other situations in which a father should not be informed of the proceedings and my examples are, of course, not exhaustive…"
And she concluded:
"(53) I should however like to express a view on the difficult question of confidentiality, which has arisen in both cases. I recognise the importance of supporting unmarried mothers who wish to place babies for adoption and do not wish their family and friends or the natural father to know of the birth of the child. It is highly desirable that babies not able to be brought up by the natural mother should be cared for by local authorities and placed for adoption within a framework of confidentiality so far as it can be maintained. The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, however, underpins the evolving culture in our adoption legislation of greater involvement of natural families in post-adoption placements and knowledge of the natural father. It also underlines the existing English law on the right of all relevant parties to notice of litigation, including potential litigation, and the relevance of r 15(3) to the natural father not married to the mother… A considerable degree of confidentiality is clearly important but it ought not, in the majority of cases, deprive the father of his right to be informed and consulted about his child. In my view, social workers counselling mothers ought to warn them that, at some stage, the court will have to make a decision in adoption proceedings as to whether to add the father as a respondent to the proceedings. The father should, therefore, be told as soon as possible in order to reduce delay, and certainly before the child is placed with prospective adopters. If the mother refuses to disclose the identity of the father, her reasons must be carefully considered and, unless those reasons are cogent, it would be wise for the local authority to seek legal advice at an early stage. If necessary, the local authority should follow the prudent course adopted by LA2 of an application to the court for directions on whether to notify the father."
"The court has a general discretion to grant exception from the requirements of the rules but that power is on the authorities only to be exercised in highly exceptional circumstances."
"The court would be exceptionally slow to grant a relaxation of the rules of service in any circumstances except the most extreme."
"The responsibilities of a public authority, the rights of the child, the rights of the husband and the rights of the mother's other children could not be minimised or suppressed."
"73. Adoption is a last resort for any child. It is only to be considered when neither of the parents nor the wider family and friends can reasonably be considered as potential carers for the child. To deprive a significant member of the wider family of the information that the child exists who might otherwise be adopted, is a fundamental step that can only be justified on cogent and compelling grounds. I find that there are no such compelling grounds here."
"78. The court would wish to preserve the father's position within his own family, and to avoid upset to him and them, if that is in A's best interests and her rights permit it. Here for reasons I have endeavoured to give I am satisfied it is not. If the mother is unable to care for A, the only prospect she may have to grow up within her own family, and retain links with both her father and mother, is if her father's family can care for her.
 The importance of that for her has to be balanced against the breach of the father's rights to respect for his family life, and the risk of rejection for him and A by his family. That may be the result. I consider it less likely. Whilst the paternal grandmother may be willing to take on the care of A, I bear in mind that for a grandchild to be adopted outside of a strict Muslim family may be something they would not wish to contemplate."
" Accordingly, balancing the rights of the parties, I have come to the clear conclusion that I should refuse the father's application …"
"25. … The court has an unfettered discretion, to be exercised having regard to all the circumstances and in a manner compliant with the requirements of the Convention. That said, and where there exists family life within the meaning of article 8 as between the mother and the father, one generally requires "strong countervailing factors" (Re H; Re G (Adoption: Consultation of Unmarried Fathers)  1 FLR 646 at para ), "very compelling reasons indeed" (Re C (Adoption: Disclosure to Father)  EWHC 3385 (Fam),  2 FLR 589, at para ) or "cogent and compelling grounds" (Birmingham City Council v S, R and A  EWHC 3065 (Fam),  1 FLR 1223, at para ) to justify the exclusion from the adoption process of an unmarried father without parental responsibility. At the end of the day, however, every case is different and has to be decided having regard to its own unique circumstances."
1. Was the judge right to decide that the ACA 2002 gave rise to a duty on the local authority to disclose the child's birth to the maternal family and, if identified, the paternal family?
2. If not, how should the court exercise its discretion in a case of this kind?
In giving her reasons for allowing the mother's appeal, Arden LJ said:
"3. In my judgment, for the reasons given below, when a decision requires to be made about the long-term care of a child, whom a mother wishes to be adopted, there is no duty to make enquiries which it is not in the interests of the child to make, and enquiries are not in the interests of the child simply because they will provide more information about the child's background: they must genuinely further the prospect of finding a long-term carer for the child without delay. This interpretation does not violate the right to family life. The objective of finding long-term care must be the focus of making any further enquiries and that means the court has to evaluate evidence about those prospects. That did not happen in this case. The judge consequently directed himself according to the wrong principle and his exercise of discretion must be set aside. This court must exercise the discretion afresh."
"23. The guardian accepts that there can be no absolute obligation under section 1 to approach the father or the wider family of the child. But she submits that the circumstances in which this should not occur would be limited to cases such as those where the life of the child would be at risk. The guardian relies on the societal shift towards greater involvement of natural father in the upbringing of children. The guardian accepts that each case must turn on its facts, and that a balancing act has to be conducted in each case. But she rejects the mother's contention that the judge was plainly wrong. She submits that the effect of s 1(4) (c) and (f) is that there is now an expectation of disclosure and that the courts should require compelling reasons to prevent it taking place, certainly to a natural father and probably too to close members of the wider family. In my judgment, as I have already indicated, the overarching consideration is that of the interests of the child. In many cases disclosure will be in the interests of the child, but it cannot be assumed that it will always be so. Moreover, disclosure has to be directed to an end that furthers the making of the decisions which require to be made. That requirement was not met in the present case."
"24. The logical consequence of my interpretation of s 1 is that exceptional situations can arise in which relatives, or even a father, of a child remain in ignorance about the child at the time of its adoption. But this result is consistent with other provisions of the 2002 Act. There are situations when the court does not require the consent of the father. For example, the consent of the father without parental responsibility is not required for a placement under ss 19 or 20, and, even if E were to be placed for adoption with her mother's consent but her father later obtained parental responsibility, he would be deemed to have consented to the placing of E for adoption (see above)."
"40. I propose to start with a few general observations. There will inevitably be a wide variety of cases where there arises the question whether a newborn child should be adopted. Every case has to be determined on its particular facts. The fact that the father or a relative has no right to respect for family life in the particular case does not mean that their position should not be considered: s 1(4)(f) of the 2002 Act applies irrespective of art 8 rights. However, the position of a person would command more importance if they were entitled to that right.
41. I accept the submission of the local authority that the court or adoption agency cannot simply act on what the mother says. It has to examine what she says critically. It is a question of judgement whether what the mother says needs to be checked or corroborated.
42. The local authority goes on to say that the ordinary rule should be that the near family and father should be identified and informed unless the court is satisfied that such enquiries would be inappropriate. The local authority submits that there is a growing trend towards involving the natural family and the father in such cases. It is no doubt true to say that there are a substantial number of cases where a child who would otherwise be placed for adoption is offered long term care by a member of the family.
43. I do not consider that this court should require a preference to be given as a matter of policy to the natural family of a child. S 1 does not impose any such policy. Rather, it requires the interests of the child to be considered. That must mean the child as an individual. In some cases, the birth tie will be very important, especially where the child is of an age to understand what is happening or where there are ethnic or cultural or religious reasons for keeping the child in the birth family. Where a child has never lived with her birth family, and is too young to understand what is going on, that argument must be weaker. In my judgment, in a case such as this, it is (absent any application by any member of the family, which succeeds) overtaken by the need to find the child a permanent home as soon as that can be done."
"76. … In my judgment the Local Authority and court still has to exercise a discretion in what Miss Hamilton QC, counsel for the mother, has called the secret birth case as to whether to place the new born on the fast track to adoption under Section 19 or to explore a family placement. The outcome of that discretionary balance will of course always depend on the facts of the individual case."
And he referred to
"81. … the exercise of a discretionary judgment as to whether swift placement with a family selected as ideally suited to parent a child for life would better promote E's paramount welfare than breaking open the mother's secret and seeking a possible family placement, preceded by extensive investigation of the maternal and paternal families.
82. However I would add that I accept Miss Eleanor Hamilton's submissions on the importance of respecting the choice of a young mother who found herself in a terrible dilemma. There are good social policy reasons for accepting the option of a private birth as the law in France and ECHR decision of Odièvre v France  1 FCR 621 recognise. If we were to dismiss this appeal we would be effectively precluding private birth as a prelude to fast track adoption in almost every case…"
"22. When the court formulates a test it is often helpful to illustrate the test by example but in family proceedings it is extremely dangerous to state that there is only a single path to exceptionality. To do so is to give a hostage to fortune, given the infinite variety of circumstances that challenge the definition of tests in family proceedings."
"37. The thrust of these cases is, therefore, that the court will not be persuaded to sanction the withholding of information about the existence of a child from that child's parent or to dispense with service on him of proceedings in relation to the child in anything other than exceptional circumstances where there are, as the President put it in Re H; Re G, "strong countervailing factors".
She then addressed Re C in these terms:
"38. Re C (A Child) v XYZ County Council strikes me as approaching the issue from a slightly different angle… The judgments include a consideration of the duties under the 2002 Act and of Article 8 ECHR. It was held that there was only a duty to make such enquiries as were in the interests of the child and what was in the interests of that child was to find a long-term carer without delay. On the facts, neither the maternal family nor the father offered sufficient prospect of a permanent home to justify a delay whilst they were informed and assessed.
39. Lady Justice Arden and Lord Justice Collins approached the issue as partly a question of statutory construction, in particular of s 1 of the 2002 Act. Arden LJ held that the paramount consideration was the child's welfare by virtue of s 1(2). She did not consider that the Act imposed any policy of preference being given to the natural family of a child in terms of placement; the interests of the child as an individual had to be considered. She observed that sometimes the birth tie would be very important and in other cases the argument for keeping the child in the birth family would be weaker.
40. The judgments give no reason to suppose that the court was contemplating a radical departure from authorities such as those I cited earlier. It can be seen that Arden LJ did not contemplate that the situation that had arisen there would often arise as she said, at paragraph 24,
"The logical consequence of my interpretation of s 1 is that exceptional situations can arise in which relatives, or even a father, of a child remain in ignorance about the child at the time of its adoption….." [my emphasis]
41. In the following paragraph she said,
"The effect of s 1 as I have held it to be is consistent with the refusal by the court under the Adoption Act 1976 to give notice of adoption proceedings to a father who had had only a fleeting relationship with the child's mother: in Re H; Re G …the President of the Family Division (Dame Elizabeth Butler Sloss) ordered that no notice of adoption proceedings needed to be given to a father who had never cohabited with the child's mother."
42. The particular facts of the case and the route to adoption provided by s 19 of the 2002 Act were clearly very influential in the decision. Thorpe LJ observed, at paragraph 69, that a disadvantage of the decision of the local authority to apply for a care order was that "it undoubtedly led all the professionals in the case to assume the duty and responsibility that arises in any application for a care order to explore profoundly the possibility of a placement, if not with a parent, then within the extended family" rather than concentrating on "the opportunity provided by s 19 of the Adoption Act to fast track [the child] into adoption in accordance with her mother's wishes"."
"40. Each case is fact specific. The Court is not bound to accept the position of one party or another. What the Court has to do is to undertake an analysis of the information it has, consider whether it can or should take any further steps and this is guided by the Court's consideration of what it considers to be in the lifelong interests of X.
41. Cases such as this require the court to critically examine what the mother says. The Court is concerned with the competing Article 8 rights of the mother, X and potentially X's birth father but it has to be done in the context of the facts and reality of the case being considered."
"i) Each case is fact-sensitive (Re RA at );
ii) The outcome contended for here is "exceptional" (A Local Authority v the mother at /)
iii) The paramount consideration is the welfare of A; section 1(2) Adoption and Children Act 2002 ('ACA 2002')
iv) The court must have regard to the welfare checklist in section 1(4) ACA 2002;
v) It is a further requirement of statute (section 1(4)(f)(iii) ACA 2002) that the court has regard to the wishes and feelings of the child's relatives;
vi) Respect can and indeed must be afforded to the mother's wish for a confidential and discreet arrangement for the adoption of her child, although the mother's wishes must be critically examined and not just accepted at face value; overall the mother's wishes carry "significant weight" albeit that they are not decisive (Re JL and AO at ,  and , and see also Re RA at [43(vi)]);
vii) Article 8 rights are engaged in this decision; however, in a case where a natural parent wishes to relinquish a baby, the degree of interference with the Article 8 rights is likely to be less than where the parent/child relationship is to be severed against the will of the parent (Re TJ at ];
viii) Adoption of any kind still represents a significant interference with family life, and can only be ordered by the court if it is necessary and proportionate (Re RA at );
ix) A high level of justification is still required before the court can sanction adoption as the outcome, and a thorough 'analysis' of the options is necessary (Re JL & AO at ); 'analysis' is different from 'assessment' – a sufficient 'analysis' may be performed even though the natural family are unaware of the process (Re RA at ). As I said in Re RA at :
"in order to weigh up all of the relevant considerations in determining a relinquished baby case it may be possible (it may in some cases be necessary) and/or proportionate to perform the analysis without full assessment of third parties, or even their knowledge of the existence of the baby. The court will consider the available information in relation to the individual child and make a judgment about whether, and if so what, further information is needed"."
"32. … First, I fully subscribe to the principle that the remedy sought by the mother is exceptional and the circumstances needed to justify that outcome have to be exceptional, but that does not mean that there has to be one magnetic factor. The combination of circumstances, none in themselves exceptional, may, when aggregated, satisfy the test. Secondly, in considering whether the test is met one needs to conduct a holistic exercise considering all the circumstances. This includes an assessment, imperfect though it will necessarily be, of what the paternal family is likely to be able to offer. Thirdly, the fact that the mother could, if she had known, have declined to name the father and thus avoid this problem with which she and the court are now faced is not a relevant factor, although its impact on the mother may be relevant."
"45. … none of the provisions of statute, regulations or rules to which I have referred, impose any absolute duty on either the local authority or the Children's Guardian, or indeed the court, to inform or consult members of the extended family about the existence of a child or the plans for the child's adoption in circumstances such as arise here. However, the ethos of the CA 1989 is plainly supportive of wider family involvement in the child's life, save where that outcome is not consistent with their welfare."
"48. … the court, and/or the local authority or adoption agency, is enabled to exercise its broad judgment on the facts of each individual case, taking into account all of the family circumstances, but attaching primacy to the welfare of the subject child.
49. In exercising that broad discretion, I would suggest that the following be borne in mind. There will be cases (if, for instance, there is a history of domestic or family abuse) where it would be unsafe to the child or the parent for the wider family to be involved in the life of the child, or even made aware of the existence of the child. There will be cases where cultural or religious considerations may materially impact on the issue of disclosure. There will be further cases where the mental health or well-being of the parent or parents may be imperilled if disclosure were to be ordered, and this may weigh heavy in the evaluation. But in exercising judgment – whether that be by the local authority, adoption agency or court – I am clear that the wider family should not simply be ignored on the say-so of a parent. Generally, the ability and/or willingness of the wider family to provide the child with a secure environment in which to grow ( section 1(4)(f)(ii) ACA 2002 ) should be carefully scrutinised, and the option itself should be "fully explored" (see ). The approach taken by Sumner J in the Birmingham case more than a decade ago, to the effect that "cogent and compelling" grounds should exist before the court could endorse an arrangement for the despatch of public law proceedings while the wider family remained ignorant of the existence of the child (see  above), remains, in my judgment, sound. This approach is in keeping with the key principles of the CA 1989 and the ACA 2002 that children are generally best looked after within their own family, save where that outcome is not consistent with their welfare, and that a care order on a plan for adoption is appropriate only where no other course is possible in the child's interests (see Re B (A child) and Re B-S )."
"57. The line of 'relinquished' baby cases discussed above ( et seq.), where the court is prepared to offer discreet and confidential arrangements for the adoption of a child, all emphasise the exceptionality of such arrangements; in those cases, the court is only ever likely to authorise the withholding of information in order to give effect to a clear and reasoned request by a parent to have nothing to do with the child, usually from the moment of birth. In those cases, the local authority, adoption agency and the court seek to maintain the co-operation of the parent in making consensual arrangements for the child (a key feature of the decision in Z County Council v R (Holman J)) which is greatly to the child's advantage."
1. So far as the CA 1989 is concerned, the decision is not one "relating to the upbringing of a child". It is a decision about who should be consulted about such a decision.
2. The same applies to the ACA 2002. The decision for the local authority and the court is not one "relating to the adoption of a child", but a decision about who should be consulted about such a decision.
3. The terms of s.1(7) ACA 2002, which apply only to decisions by the court, do not lead to a different conclusion. The subsection is not without difficulty – see Re P (Adoption: Leave Provisions)  EWCA Civ 616;  2 FLR 1069 at [19-24] – and I cite it again for convenience:
"In this section, "coming to a decision relating to the adoption of a child", in relation to a court, includes—
(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 or 51A (or the revocation or variation of such an order),
(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,
but does not include coming to a decision about granting leave in any other circumstances."
Although widely drafted, sub. (a) does not cover the paradigm situation where a Part 19 application has been made, nor is that an application for any form of leave as mentioned in sub. (b). And even if there are proceedings of the kind mentioned in sub. (a), it cannot properly be said that every case-management decision within those proceedings is one to which welfare paramountcy applies. Such decisions are more apt for the application of the over-riding objective in Part 1 of the FPR 2010, which requires the court to deal with cases justly, having regard to any welfare issues involved. In my view the correct interpretation of the expression "coming to a decision" in s.1(7) ACA 2002 means coming to a decision about the substance of the application, whether it be an adoption order, a placement order, or a contact order. It does not include coming to a decision about who should and should not be informed of the existence of the child or of the proceedings themselves.
4. This conclusion is consistent with the established distinction between decisions that are welfare-paramount and those that are not. This is made explicit in the cases reviewed at paras. 48-50 above and the corresponding silence in the entire line of authority preceding Re C v XYZ County Council is equally significant. To take one example, the decision of the House of Lords in Re D  about withholding material in confidential reports did not refer at all to the equivalent provision to s.1 ACA 2002 in the Adoption Act 1976 (which by s.6 placed a duty on the court and the local authority to give first consideration to the need to safeguard and promote the welfare of the child). Likewise, in Re X  this court determined the issue of whether the parents should be told that the foster parents were adopting the children by striking a balance between the competing interests, not by prioritising child welfare. This approach continued after the enactment of the ACA 2002, as can be seen in the comprehensive survey of the law conducted by Munby J in Re L , which makes no reference to s.1 of the Act, to welfare-paramountcy or to the welfare checklist.
5. Re C v XYZ County Council, while plainly correctly decided, is not binding authority on this issue, for the reasons I have given above.
6. The later decision of this court in Re A  does not support a welfare-paramountcy test.
7. Lastly, there is no reported decision of which I am aware in which the outcome has been dictated by the court finding that the welfare of the child trumps all other considerations; instead, there is an unbroken body of case law in which the outcome has been determined by a balancing of the rights and interests of all the individuals concerned.
Urgency and thoroughness of procedure
"1. A local authority should take these steps as soon as it is notified that a mother, or mother and father, are expressing a wish that an infant is placed for adoption without notification to either the child's father or extended family:
(i) The local authority files should be checked for background information about the mother and extended family and for contacts with other relevant agencies, such as health and police.
(ii) The allocated social worker, ideally accompanied by an adoption worker, should undertake at least one visit but preferably a series of visits to the mother, or mother and father, if she/they are willing, to discuss:-
- The decision to place the child for adoption.
- The reasons for not notifying the child's father, or extended family, where possible gathering details about the father's background and that of the family.
- The mother's background and information about her family.
- Any cultural issues and how they have affected the decision made by the mother, or mother and father.
- The implications of adoption for the child
- The legal process required to achieve adoption
- Other possible options for the care of the child
- The adoption counselling service and how to access it
- Whether the mother, or mother and father, require any other form of support and how that might be achieved
No assurance should be offered to a parent during the social work visit/s that notice of the birth of the child will be withheld from the father and/or extended family members.
(iii) The mother, or mother and father, must be provided with written information, where available, about the process and adoption counselling services.
(iv) Where the father is identified, the local authority should check its records for any background information known about him.
(v) The placement team must be informed immediately and it should begin the process of finding a suitable placement, preferably with 'foster for adoption' / early permanence carers.
(vi) CAFCASS must be informed as soon as the local authority is notified so that it can allocate a worker to the case for the purpose of meeting with the mother, or mother and father, to discuss and where appropriate take consent for adoption.
2. The local authority should critically examine all information that it receives and, in circumstances where the mother states the identity of the father is unknown to her, the local authority should carefully consider her statement and her explanation to consider whether there is any basis for considering that the statement might be false. If the local authority does form that view
,it should consider if there is any reasonable way by which the identity of the birth father could be established.
3. The social worker should, as a matter of urgency, seek legal advice to ascertain whether the matter should be placed before the court in all cases where:
(i) the mother opposes notification to the father, if identified;
(ii) the mother knows the identity of the father but is unwilling to disclose this information;
(iii) the local authority has reason to doubt the reliability of the mother's claim that the identity of the father is unknown, or
(iv) the mother is opposed to any notification to her family or the father's family.
4. The legal advisors will need to consider and advise as a matter of urgency whether a Part 19 application or other proceedings should be issued.
5. If a decision is made that a Part 19 application is not required, the local authority should immediately notify CAFCASS, and provide detailed reasons for that decision, to allow CAFCASS to consider this information prior to meeting with the mother, or mother and father, when discussing consent under section 19 or for any later adoption application.
6. As non-means/non-merits tested public funding is unavailable to parents for a Part 19 application (and emergency funding may be difficult to access on an emergency basis even if merits and means tests are met), a local authority should provide the mother, or mother an father, with advice concerning access to independent legal advice and how that might be obtained and funded (including by the local authority considering the funding of such advice). A list of specialist solicitors available in the area should be provided.
7. Where an application is to be made, the social worker should prepare a detailed statement setting out the information gathered and providing the local authority's position regarding the wish of the mother, or mother and father, to relinquish the child without notifying the father and/or extended family members."
1. Identity of judge: If the application is under Part 19, it must be heard in the High Court and appropriate listing arrangements must be made. Upon issue, the application should immediately be referred to the DFJ for consultation with the FDLJ as to whether the application should be allocated to a High Court Judge or a section 9 Deputy High Court judge.
2. Identity of parties: (a) It is not mandatory for a respondent to be named in the application, although it will usually be appropriate for the mother to be identified as a respondent; (b) directions should be given on issue joining the child as a party and appointing a CAFCASS officer to act as Children's Guardian in the application; (c) neither a father (with or without parental responsibility) nor members of the wider maternal/paternal family are to be served with or notified of the application or provided with any of the evidence filed in support of an application.
3. Case management: The application should be listed for an urgent CMH, ideally attended by the CAFCASS officer. At the hearing, consideration should be given to the need for any further evidence, the filing of the Guardian's analysis and recommendations, the filing of written submissions and the fixing of an early date for the court to make a decision.
4. Receiving the mother's account: It is a matter for the court as to whether it should require written or oral evidence from the mother. Given the importance of the issue, the court will normally be assisted by a statement from the mother, whether or not she gives oral evidence, rather than relying entirely upon evidence from the local authority at second hand.
5. The listing of the hearing of the application should allow time for whatever evidence and argument may be necessary, and for a reasoned judgment to be given. Even allowing for the pressure on court lists, these decisions require prioritisation.
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 it is 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. The fact that a father has parental responsibility by marriage or otherwise entitles him to give or withhold consent to adoption and gives him automatic party status in any proceedings that might lead to adoption. Compelling reasons are therefore required before the withholding of notification can be justified.
(2) Article 8 rights. Whether the father, married or unmarried, or the relative have an established or potential family life with the mother or the child, the right to a fair hearing is engaged and strong reasons are required before the withholding of notification can be justified.
(3) The substance of the relationships. Aside from the presence or absence of parental responsibility and of family life rights, an assessment must be made of the substance of the relationship between the parents, the circumstances of the conception, and the significance of relatives. The purpose is to ensure that those who are necessarily silent are given a notional voice so as to identify the possible strengths and weaknesses of any argument that they might make. Put another way, with what degree of objective justification might such a person complain if they later discovered they had been excluded from the decision? The answer will differ as between a father with whom the mother has had a fleeting encounter and one with whom she has had a substantial relationship, and as between members of the extended family who are close to the parents and those who are more distant.
(4) The likelihood of a family placement being a realistic alternative to adoption. This is of particular importance to the child's lifelong welfare as it may determine whether or not adoption is necessary. An objective view, going beyond the say-so of the person seeking confidentiality, should be taken about whether a family member may or may not be a potential carer. Where a family placement is unlikely to be worth investigating or where notification may cause significant harm to those notified, this factor will speak in favour of maintaining confidentiality; anything less than that and it will point the other way.
(5) The physical, psychological or social impact on the mother or on others of notification being given. Where this would be severe, for example because of fear arising from rape or violence, or because of possible consequences such as ostracism or family breakdown, or because of significant mental health vulnerability, these must weigh heavily in the balancing exercise. On the other hand, excessive weight should not be given to short term difficulties and to less serious situations involving embarrassment or social unpleasantness, otherwise the mother's wish would always prevail at the expense of other interests.
(6) Cultural and religious factors. The conception and concealed pregnancy may give rise to particular difficulties in some cultural and religious contexts. These may enhance the risks of notification, but they may also mean that the possibility of maintaining the birth tie through a family placement is of particular importance for the child.
(7) The availability and durability of the confidential information. Notification can only take place if there is someone to notify. In cases where a mother declines to identify a father she may face persuasion, if that is thought appropriate, but she cannot be coerced. In some cases the available information may mean that the father is identifiable, and maternal relatives may also be identifiable. The extent to which identifying information is pursued is a matter of judgement. Conversely, there will be cases where it is necessary to consider whether any confidentiality is likely to endure. In the modern world secrets are increasingly difficult to keep and the consequences, particularly for the child and any prospective adopters, of the child's existence being concealed but becoming known to family members later on, sometimes as a result of disclosure by the person seeking confidentiality, should be borne in mind.
(8) The impact of delay. A decision to apply to court and thereafter any decision to notify will inevitably postpone to some extent the time when the child's permanent placement can be confirmed. In most cases, the importance of the issues means that the delay cannot be a predominant factor. There may however be circumstances where delay would have particularly damaging consequences for the mother or for the child; for example, it would undoubtedly need to be taken into account if it would lead to the withdrawal of the child's established carers or to the loss of an especially suitable adoptive placement.
(9) Any other relevant matters. The list of relevant factors is not closed. Mothers may have many reasons for wishing to maintain confidentiality and there may be a wide range of implications for the child, the father and for other relatives. All relevant matters must be considered.
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 decision and appeal in Case A
"9. My assessment is therefore that if further enquiries were made on the basis of the information we have at the moment it is highly unlikely that any candidate from within either family will come forward to look after A and that it is quite possible that it would have a deleterious effect both on the child's placement and on the Mother's mental health. Taking the mother's wishes, which carry significant weight, and the unlikelihood of there being a family placement on the information that is available as I analyse it, it seems to me that that significant weight attached to the mother's views is much greater than any weight that I attach to having regard to the wishes and feelings of the other relatives of this child. Given also that it is a natural parent's wish to relinquish a child it seems to me that there is much less interference with Article 8 rights here than there is in other situations for adoption except that adoption of any kind still represents a significant interference in family life and in the circumstances of a relinquished child I do not have to find that nothing else will do, see Re J and AO (2016) EWHC. Mr Fuller [for the local authority]… raises two potential risks that I have to consider very carefully. First of all the possibility of an unguarded remark by the mother leading to the existence of A becoming known by family members with a family member making a late, possibly too late, application. Balanced against that the only way I can be sure of that not happening is if the family are told, something which would, according to the Mother be disastrous. Secondly Mr Fuller mentions the fact that A himself might question the circumstances of the adoption and why there is nobody in his birth family who could care for him. We know the answer to that because he was surrendered for adoption and the judge had ruled that no further enquiries were to be made.
10. The guardian recommends that a more detailed analysis is carried out of the risks to A if his relatives, including the father, are informed of the proposed adoption.
11. I cannot see that there is a middle ground here. A more detailed analysis would involve the relatives being told, what else could one do? This would first of all involve the Mother's family being told and secondly involve finding out who the Father is from the Mother and telling him and his family. I can't see there is anything to be gained from that. It seems to me that there are no other realistic options on the information available and that in order to get more information one would have to cross the rubicon of telling everybody. It is not possible to check out or corroborate the Mother's information without doing that.
12. In all of the circumstances here I come to the conclusion after anxiously weighing the various factors and making as careful an analysis as I can in all the circumstances that it is not necessary for the Local Authority take any further steps in order to try and identify either prospective members of the Mother's extended family or the putative Father and the members of his family and this adoption should go ahead on that basis."
The decision and appeal in Case B
"3. … There is obviously a balance to be drawn in respect of both Article 6 rights and Article 8 rights, with respect for a private family life. I accept the principle put forward that the quality, or lack of quality, of a relationship with family members is such that Article 8 rights are not engaged in all directions. Of course the paramount consideration will be B's welfare interests."
He then stated that he did not consider that the mother's arguments were fanciful or tactical and referred to corroboration of her account in certain respects, and in particular as being a victim of FGM. He directed himself with reference to the recent case law. He accepted that the mother is a vulnerable individual and that there are cross-cultural complications. He accepted that issues of safety are a very real consideration in cases such as this. He noted the mother's account of her own childhood experiences, but also that there were positive aspects of the maternal family situation. He continued:
"10. So I have to balance these features and plainly it is not an easy balance. One must respect that the mother's position is, as I have said, one that is not based simply on fanciful points, but one also has to have regard to B's welfare interests, one has to bear in mind, albeit not place overdue weight on the fact that mother's assessment at this time has had some problems, which elevates the potential for there to be stark decisions to be taken in this case… There is a very real risk in this case that the court would be confronted by a situation at that stage in which that question will be asked in circumstances where neither father's family nor mother's family have been considered in any meaningful way whatsoever. That creates a problem within these proceedings but undoubtedly would also pose a potential problem within future proceedings under the 2002 Act were someone to come forward at that stage and raise the question of a failure to assess. So that focuses attention on the significance of this decision.
11. Having considered the factors, I consider on balance it is right for the local authority to seek to investigate this matter. If … the pointers demonstrate no wish [on the part of the family] to be involved with the child, or the information, such as is available for the viability assessment, suggests [the family] is inappropriate to care for the child, then the court will have taken the appropriate steps to ensure that all options have been properly considered. But to shut those off at this stage it seems to me is not to properly meet the welfare needs of B…"
The decision and appeal in Case C
"20. In determining this matter, firstly does the Father have a right to family life and if so, is there justification for interfering in his Article 8 and Article 6 rights by granting the declaration that Mother so fervently seeks? Are there strong countervailing factors justifying this exceptional outcome? Of course, pursuant to the Adoption and Children Act 2002, the child's welfare throughout her life is paramount."
"26. … I do consider, and I think this is a crucial finding I have to make, that Father has Article 8 and Article 6 rights on Mother's evidence and the assessments by the local authority and therefore my starting point has to be that he should be informed about C.
27. The strong countervailing factors that are cited by both the local authority and by Mother and again, accepting Mother's evidence at face value, that he raped her, he allowed his cousin to rape his wife and obviously, there is a very real concern here about how far they will deal with it and whether he considers he has been deceived.
28. I have no reason to believe that Mother is in any sense telling me lies, but I did find that she undervalues the relationship that the children have with Father… She allows Father access to her home, allows him to sleep there and allows him, essentially, to come and go. Many may congratulate her for that, that the children do have a relationship in relation to his [other] children, and his stepchild, do have a male in their life in the form of their father and although Mother urges that there could be domestic violence, the real effect is that she asserts he has never physically assaulted her…
30. I am not sure where I can find the evidence that Father will make her life unbearable…
32. … I have reached the clear position that Father has to be informed and I do not see that, on the law as it stands, I could possibly find any other way forward. As far, unfortunately, as I am concerned I do this with a great deal of sadness, but I think Mother is to be congratulated and respected for the level of care that she gives her children and the fact that persistent looking at by the Local Authority make it abundantly plain that Mother does a very good job.
34. Mother has her hands full and I am bound to say it is with an enormous amount of regret that I do not regard this as so exceptional with strong countervailing factors, that I should exclude him from any knowledge about this little baby and I emphasised to Mother, it is with a great deal of regret. In so far as the extended family is concerned, I think Mother's evidence on this was compelling and there must be no further delay. … It is going to be dreadful for Mother. I accept that, when this happens and really, the damage is done now."
Lady Justice Nicola Davies
Sir Andrew McFarlane P