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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A Local Authority v JK and W (Adoption Notification to father) (Rev 2)  EWHC 33 (Fam) (15 January 2021)
Cite as:  EWHC 33 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
| A LOCAL AUTHORITY
|- and -
|- and -
(Through his Guardian)
Malcolm Chisholm for the First Respondent (instructed by Philcox Gray Solicitors)
Susan George for the Second Respondent (instructed by Freemans Solicitors)
Hearing date: 10 December 2020 (by MS Teams)
Crown Copyright ©
Mr Justice Peel:
i) An order under FPR Part 19 and rule 14.21 endorsing its decision not to disclose W's existence to his Father in proposed adoption proceedings, or at all; and
ii) An order under the inherent jurisdiction endorsing its decision not to disclose his existence to the maternal grandparents.
The Mother supports the applications. The Guardian opposes the applications.
Family Division or Family Court
"In relation to a putative father, [the] application will be under Part 19 unless issues of significant harm have made it necessary to issue proceedings for a care or placement order; I would suggest that an equivalent application under the inherent jurisdiction can be made where a local authority has doubts about notification of a close relative."
Inherent jurisdiction and fathers without parental responsibility
"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".
Notice to fathers without parental responsibility
"Where no proceedings have started an adoption agency or local
authority may ask the court for directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption".
"…clarify that directions under rule 14.21 FPR 2010 can be given by the Family Court as well as the High Court".
"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."
"5. A is a boy born in February 2019. When he was born, his mother relinquished him to the care of her local authority and asked it to place him for adoption. A was placed with early permanence carers who would like to adopt him. On 22 May, the mother signed forms under sections 19 and 20 of the Adoption and Children Act 2002, consenting to his placement for adoption and giving advance consent to his adoption by his carers.
6. A's mother is aged 21. She is a student. Out of term time she lives with her mother and brother. On her account, A's father is a student elsewhere. They were in a relationship lasting 4½ years and, though no longer together, remain friends. The mother did not tell her family, or the father or his family, about her pregnancy or A's birth. She has not named the father but the information she has given to the local authority probably enables him to be identified. Her own family is identifiable.
7. The mother gave these reasons for wanting A's birth to be kept secret and for him to be adopted:
• 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.
8. On 28 June the local authority belatedly issued an application under Part 19 of the Family Procedure Rules 2010 (FPR 2010) seeking a decision as to whether it should identify the putative father and members of the extended maternal and paternal families and offer to assess them as prospective carers. The application was determined by HHJ Marston on 16 August. He directed that the local authority was under no obligation to inform the father or wider family members of A's birth, or to seek to assess them as prospective carers. He declared that the lack of notice would not be regarded as a reason not to make an adoption order in due course. The Guardian applied for permission to appeal on 24 September and permission was granted on 16 October."
"95. Having heard the arguments, we informed the parties that the appeal would be allowed. We endorsed the Guardian's suggestion that the father should be told of A's existence, by the mother if she prefers. The parties should then take stock of whether notification of the wider families is appropriate, with any issue about that being resolved by HHJ Marston.
96. Procedurally, the local authority adopted the correct procedure by issuing a Part 19 application. Unfortunately, it only did so after a delay that has had two consequences. Firstly, A has naturally been strengthening his ties with his carers, for whom the delay and the outcome of the appeal is bound to be very difficult. Secondly, the local authority had made its own mind up by deciding that adoption is in A's best interests long before it placed the issue of family notification before the court.
97. A further aspect of the process in this case was that it carried on without the mother's direct participation, even to the extent of her filing a statement. There will, no doubt, be cases where there are good reasons why a parent cannot participate. The court will then have to make the best of hearsay evidence. But it is already a characteristic of these cases that the court is making an important decision on incomplete information. However, the court did not seek to engage directly with the mother so as to obtain the best evidence available.
98. As to the substance of the decision, it is not entirely clear whether the judge considered that the father had rights under Article 8. On the one hand, the parents were no longer in a relationship, but on the other their relationship had lasted for several years and they apparently remained on friendly terms. That would not make a very persuasive case for the father having Article 8 rights, but he clearly had an interest that needed to be considered and I would on the whole accept that this was the judge's view.
99. However, although the judge directed himself on the law, his decision does not in my view identify sufficient reasons to justify the father being kept in the dark about the birth and adoption of A. The reasons given for non-disclosure concerned the risk to the mother's wellbeing and her account of the improbability of a suitable family placement. As to the first, disclosure would be likely to be difficult for the mother, but there was no convincing evidence to support the judge's conclusion that it might be "disastrous". The rejection of the possibility of a family placement was based on the mother's account without there being any objective basis for believing that the father and the wider families were very likely to have nothing to offer. Nor was any real weight given to the potential benefits to A of growing up in his birth family if that is a realistic possibility, or of his adoption having his father's participation, and even his blessing, if it is not. I would not accept the local authority's characterisation of the process of notifying a father of the birth of his child as "opening a can of worms" where the characteristics of the father or wider family raise no particular cause for concern. The judge was entitled to note the delay involved in notification, but as the child had already been placed with prospective adopters, little weight could attach to that aspect of the matter. In summary, while the judge rightly gave significant emphasis to the mother's point of view, he did not sufficiently balance it against the other important considerations bearing on A's lifelong welfare and the position of family members, and his decision cannot therefore stand.
100. After this passage of time it would not have been in anyone's interests for the decision to be remitted and it therefore fell to this court to remake it. As to the balance to be struck, I bring forward my observations from the preceding paragraph. While I would not myself attribute Article 8 rights to the father, he has an interest to be considered. The mother's account does not provide a strong objective basis for discounting him as a suitable carer without further investigation. The difficulties that notification is likely to cause to the mother do not outweigh the considerations relating to the interests of the father and the child in the context of a plan for adoption. This interference with the mother's right to respect for her private life is necessary and the staged approach proposed by the Guardian is proportionate. For these reasons, I agreed that the appeal should be allowed."
" These three appeals concern babies whose mothers concealed their pregnancies and did not want the fathers and other relatives to know of the births. Should the local authorities and the court notify the fathers or relatives before plans for the children's future are made and put into effect? In each case the plan may involve adoption and in two cases that is what the mother wants.
 Respect is due to the position of any mother who goes through pregnancy without family support and then chooses to relinquish the child at birth in the belief that it is for the best. Respect is also due to the position of the unsuspecting relatives. Some may have been a fleeting presence in the mother's life, but others may be more significant figures who have been kept in the dark and would be astonished to find that a baby (their child, sibling or grandchild) had been born and adopted without their knowledge, particularly if they were in a position to put themselves forward as carers. Most of all, the notification decision has life-changing implications for the baby. It may influence whether adoption happens at all and, even if it does, a sound adoption has its foundations in the integrity of the process by which it is achieved.
 For social workers and courts these are not easy decisions. They have to be made without delay, on incomplete information, and in the knowledge of the profound consequences for everyone concerned. The law aims to distinguish those cases where a 'fast-track' adoption without notification of relatives is lawful from the majority of cases where the profound significance of the decision for the child demands that any realistic alternatives to adoption are given proper consideration. But in the end each case is unique and the outcome must depend on the facts."
" Pausing at this point, this body of authority at first instance and on appeal affirms that there is a discretion to be exercised by the local authority and by the court as to whether fathers and other relatives should be notified of the birth of a child. The discretion requires the identification and balancing up of all relevant factors. While the mother's right to confidentiality is important it is not absolute. 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. In each case, the welfare of the child was regarded as an important factor but, significantly, there is no suggestion that the exercise of the discretion is governed by the paramountcy principle.
 For these reasons I conclude that while child welfare, prompt decision-making and a comprehensive review of every relevant factor, including those mentioned in the checklists, are all central to the notification decision, the decision is not one that is formally governed by the provisions of s.1 of the CA 1989 or of the ACA 2002 and the welfare of the child is not the paramount consideration of the local authority and the court in this context."
" The principles governing decisions (by local authorities as adoption agencies or by the court) as to whether a putative father or a relative should be informed of the existence of a child who might be adopted can be summarised in this way.
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 not 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."
"I just wanted to write this to explain what's been going on. These past few weeks for me regarding the hearing have been debilitating. I haven't been sleeping or eating properly which has in turn caused a kidney infection which I am currently recovering from. I have been anxious and depressed and have had suicidal thoughts. I can't do this anymore I just can't. I'm sorry. No one understands what this is like for me. I never wanted any of this. From knowing I was pregnant for 5 weeks to this, it's too much it's just too much.
Back in April I was promised all of this wouldn't be happening from the social services. It's just taken a massive toll on me physically, mentally and emotionally to go through this confusing process. I never wanted any of this from start to finish".
Local Authority and Mother's case
i) W is now 10 months old. To notify the Father and/or the wider family members, and embark on the resultant inquiries and investigations, would inevitably lead to a delay before his future is settled.
ii) The prospective adopters have indicated that they are presently still willing to be considered, even if notification takes place, but they make no guarantees for the future if there is significant delay.
iii) The Mother's views are clear. She wishes for W to be adopted, and for the facts of her pregnancy, the birth, and his adoption to be kept confidential and not notified to the Father or the wider families.
iv) The impact on the Mother of notification to the Father would be deeply damaging. She would suffer very considerable anxiety and would be exposed to a significant risk of mental health deterioration. She continues to feel anxious and overwhelmed and experiences suicidal thoughts.
v) The relationship of the Father and Mother was at its highest a string of casual liaisons and not one of real substance. The Mother says: "Looking back, I can now see that my relationship with J was abusive although not physically abusive", although little specific detail is given of the Father's behaviour to the Mother.
vi) The Father is not a realistic potential carer. He lives with his parents, has an irregular income and was a drug user when the Mother knew him. His reaction to the pregnancy in 2018 suggests he would have no interest in W. There is some suggestion of mental health issues, although no details are given.
vii) The Mother's wider family are not likely to be potential alternative carers. Her mother is 58 and in full-time employment. Her father, aged 67, is retired but works part time. The Mother has a difficult relationship with her parents and considers that there is a risk of a complete breakdown between them.
viii) Similarly, the Father's parents do not represent a realistic alternative. His mother has diagnosed schizophrenia and is cared for by her husband. She and her husband are said to be in financial difficulties.
The Guardian's position.
i) W's Article 8 rights entitle him to exploration of the possibility of being cared for by, or knowing, his birth family.
ii) The relationship between the Mother and the Father was not so limited as to justify non-notification.
iii) The maternal grandparents cannot be entirely ruled out as carers at this stage, although the paternal grandparents may be less viable.
iv) The Father's personal difficulties are not such as to rule him out as a potential carer.
v) Alternatives to adoption cannot be excluded at this stage.
i) There was an unacceptable delay in issuing the application until W was about 7 months old. That 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, and the competing rights and interests of the Mother, W, the Father, and wider families.
ii) The evidence presented about the Father is limited, but in my view, even on the Mother's presentation, it is 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. It seems to me that in the circumstances of this case to proceed to adoption (the "last resort"/"where nothing else will do" as it was described in Re B (Care Proceedings: Appeal)  UKSC 33)) without (a) conducting a thorough inquiry into his circumstances and (b) permitting him to advance a case as to how he might make a meaningful contribution in W's life and (c) permitting him to put forward options which fall short of adoption, would be disproportionate and unjust.
iii) Similarly, I do not consider that the evidence justifies 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.
iv) The Mother's relationship with her parents, in particular her mother, does 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.
v) 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.
vi) There is 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 is 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.
vii) There is the possibility that the prospective adoptive parents might elect to withdraw from the process, although they have not yet ruled themselves out and are 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 Guardian considers that W is the type of child who will be easily adopted, and an alternative adoptive family should be readily found. In the meantime, he is securely placed with foster carers.
viii) I accept that the Mother is experiencing considerable distress and anxiety, although according to the evidence this has been the position since she discovered that she was pregnant in December 2019, well before she was aware of this possible application. In other words, the anxiety, profound though it may be, appears to be primarily a consequence of the birth and giving her son up for adoption rather than the non-notification proceedings per se. These proceedings will no doubt have exacerbated her distress, but I regard the difficulties as manageable rather than representing a significant mental health vulnerability. There is no expert evidence as to any particular mental health issues or diagnosis on the part of the Mother, nor has the Mother accessed any specialist mental health services. True, she has recently been to a GP and been referred for counselling, but beyond that there is little to satisfy me of a substantial risk to her mental health. I conclude that the impact on the Mother, while distressing and unsettling, is unlikely to be disastrous and I would hope and expect that proper support will be offered by the Local Authority to address any issues.
ix) Finally, I bear in mind that a determination in the Local Authority's favour inevitably will 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.
Lessons for the future in non-notification cases