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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A (Notification of Father and other Family Members), Re [2024] EWHC 1747 (Fam) (15 February 2024) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2024/1747.html Cite as: [2024] EWHC 1747 (Fam) |
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FAMILY DIVISION
SITTING AT THE ROYAL COURTS OF JUSTICE
B e f o r e :
Sitting as a Deputy High Court Judge
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A MOTHER |
Applicant |
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- and – |
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(1) A LOCAL AUTHORITY (2) A CHILD (BY THEIR CHILDREN'S GUARDIAN) |
Respondents |
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Re A (Notification of Father and other Family Members) |
____________________
Suzannah Hargreaves, senior solicitor for the local authority
Paulina Panayiotou, Hanne and Co, solicitor for the child
Hearing dates: 24 January and 15 February 2024
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Crown Copyright ©
Mr L Samuels KC:
Introduction
(1) An order under FPR PD12C, paragraph 3.2, to dispense with service of Form C6A (notice to non-parties) upon the father.
(2) An order under the inherent jurisdiction to prevent any party notifying any other relatives of the existence of these proceedings.
Background
The Parties Submissions
The Legal Framework
"The presence or absence of family life is an important, though not a decisive feature and where it exists strong countervailing factors are required to justify withholding knowledge of the existence of the child and the proceedings. The tenor of the authorities is that in most cases notification will be appropriate and the absence of notification will be the exception; but each case will in the end depend on its facts."
"(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:
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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.
(vii) 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.
(viii) 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.
(ix) 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."
"46. Each year local authorities issue care proceedings in the Family Court in which the fathers of the children concerned do not have parental responsibility and who, though not parties, are nonetheless entitled to receive a copy of Form C6A. Until they receive Form C6A some fathers are in a state of ignorance about the existence of their child. Others are aware of the existence of the child and of the fact that they are the child's biological father but have thus far shown no interest in the child's life. For the children involved it is important that attempts are made to engage with their birth father and perhaps also his wider family. The starting point must be two fold. First, that it will normally be in the interests of the child that her birth father should receive a copy of Form C6A thereby enabling him to apply for party status so that he can participate in the proceedings. Second, that the child and her mother should not be put at risk of harm as a result of seeking to engage the father in the proceedings. It is a matter of balance and that is the case whether or not the father is entitled to the protection of Article 8 and Article 6."
Analysis
(1) The mother concealed her pregnancy, primarily because she was in genuine fear of the maternal grandfather finding out.
(2) The father has convictions for serious violence involving possession of a knife. The decision by the paternal grandmother not to tell her son could be corroboration of the mother's concern that he might be violent to her himself and / or might well inform the maternal grandfather about the child.
(3) The father did not want the relationship with the mother to continue. It seems likely to me that he did react to the mother's pregnancy by telling her to seek a termination.
(4) The father sent intimate images of the mother to a third party and encouraged him to distribute these to the maternal family. The mother's evidence about this is corroborated by the maternal grandmother who also confirms that the maternal grandfather reacted violently when he became aware of this. He threatened to kill the mother if she brought any further shame upon the family.
(5) The maternal grandfather has a history of alcohol abuse, violence and threats of violence. The mother's fears about him and how he is likely to react are supported by the maternal grandmother and maternal aunt. He has specifically threatened to kill his daughters if either of them were to become pregnant outside of marriage. The family's view that the maternal grandfather may kill the mother under the influence of alcohol or under pressure from other family members cannot be ignored.
Parental Responsibility
Article 8 rights
The substance of the relationships
The likelihood of a family placement being a realistic alternative to placement
The physical, psychological or social impact on the mother or on others of notification being given
Cultural and religious factors
The availability and durability of the confidential information
The impact of delay
Conclusions