Re F (Assessment of birth family)
B e f o r e :
| A LOCAL AUTHORITY
|- and -
(A child, by her Children's Guardian)
Ms Sara Anning (instructed by Wilkinson Woodward Solicitors) for the Mother
The father was not present or represented.
Ms June Kelly (of JWP Solicitors) for the child, by her Children's Guardian
Hearing date: 1 April 2021
Crown Copyright ©
The Honourable Mr Justice Cobb:
Within these public law proceedings, is there any obligation on the Local Authority to assess members of the 'original family' (i.e., the biological/birth family) of the mother of the subject infant child (F), where the mother herself was adopted as a child and raised by adoptive parents?
i) by the Court of Appeal in an analogous situation involving notification of wider family of a baby who a mother/parent wishes to relinquish for adoption (Re A, B, C (Adoption: Notification of Fathers and Relatives)  EWCA Civ 41) ('Re A, B, C')
ii) in a previous decision of mine, concerning family assessment more generally, namely Re H (Care and Adoption Assessment of Wider Family)  EWFC 10 ('Re H').
I return to this briefly in conclusion at  below.
"To me, this shows the high level of risk that was associated with myself and [F] being around my birth family and the understanding that the family dysfunction was a negative impact on both [F]'s and my own, health and wellbeing… From my discussions with the Social Worker and other professionals up until now, it has been acknowledged that my birth family are not part of my support network and are not positive influences for myself and [F] and therefore, I have disassociated myself from them. I understand that the social worker has told my birth mother not to have contact with me because the relationship was toxic, which is what the Social Worker also told me".
"… to determine whether the Local Authority should elicit the mother's birth family views as to the plans for [F]'s future and if relevant, assess them to ensure that there are no gaps in the evidence and that it can tick the "nothing else will do" box".
"I had a difficult relationship with my birth mother especially, we argued regularly, mainly due to me having questions about her past and the reasons for my adoption and she was not willing to answer them."
"During the time that I spent in [name of town] with my maternal birth family, my birth mother encouraged me to use alcohol and smoke cannabis mainly. My aunt … encouraged me to take cocaine on one occasion."
"This was an extremely difficult time in my life. I was a teenager whose adoptive placement had broken down and I felt lost and not sure of what to do with myself. I did lean on my birth mother because I felt she was the only person who I had a 'link' to at that time. However, this was not a positive experience and I was drinking alcohol and smoking cannabis heavily during the time that I 'lived' there, up until I found out that I was pregnant … I do feel I was negatively influenced by their chaotic lifestyle and the people who my birth family associated with, which lead me to behave in such a way to try and fit in".
"I fear that should [F] be placed within (sic.) any of them in the future, [F] would not be encouraged to have a continued relationship with me. I experienced my mother trying to poison my relationship with my birth father and she has told what I believe to be lies about him. Due to the behaviour she has already shown in relation to [F] and myself whilst proceedings have been ongoing and prior to issue, I am concerned that she would try to poison my relationship with [F] should she be placed with her or any other members for my birth family".
"I do not feel in the light of all the issues that [F] would be safe with my birth family as they lead chaotic lifestyles and are all intertwined with each other. I do not believe that one member of my birth family would be able to safeguard [F] from the any other family member. My opinion in relation to this issue relates to [F] and what I think is best for her. I understand from speaking with the Social Worker and [aunt] that my mother has made her intentions clear, that she wants a relationship with [F] but not with me. I do not understand why this is and I cannot see how any placement with my birth family would work and be sustainable moving forward".
The arguments of the parties
i) they are bound to the mother and to F by a relationship of consanguinity; the legal severance of the family relationship has been "socially undone" by their recent contact;
ii) they know of F's existence;
iii) they are interested in F; at this stage, F's 'birth' maternal grandmother has not indicated any wish to care for F, but wishes to have contact;
iv) the birth maternal grandmother apparently successfully cared for a child after the adoption of the mother and her brother;
v) the mother continues, even now, to maintain some relationship with her birth father by text and phone;
vi) there are members of the wider family in respect of whom it is understood there are no social work concerns and who appear to be caring adequately for their own children.
She further argues that I could not/should not make the decision now but should await further outline information from local authorities in which members of the birth family live (they are scattered around the country) in order to reach a more informed view.
i) The mother strongly opposes any assessment of the birth family; she sees her adoptive family who raised her since she was six as her 'family'. The mother's view must weigh heavily in the evaluation of the issue;
ii) The mother contends that the birth family would be wholly unsuited to care for F; she relies on their historical failure to care for her, and what she knows of their current lifestyles; her relatively brief re-engagement with them has adversely affected her;
iii) The mother has in fact currently 'fallen out' with her birth mother; the prospects of any family placement within the birth family being free from conflict or drama is small;
iv) The mother feels sufficiently strongly about the issue of assessment that were it to go ahead, she fears that it could destabilise her currently reasonable mental health, and jeopardise her own chance to care for F; she does not feel that she is in a psychologically strong place, and feels anxious about embarking on the next phase in which she will be assessed in the community with F with this 'hanging over her head'; I have in mind the expert opinion which suggests that if the mother engages successfully in psychological therapies, she may well be in a position safely and appropriately to care for her daughter;
v) Any assessment of the birth family would create divisions within her family – her parents who adopted her many years ago; and with her foster parents;
vi) The birth family, as a matter of law, ceased to be legally the mother's family when the mother was adopted; there are no recognisable enduring legal rights;
vii) The Article 8 ECHR rights of the birth family are non-existent, or at best highly tenuous, given the lack of legal rights and the limited relationship between the birth family and the mother and particularly F; Miss Anning understandably relied in this regard on the comments which I made in Re TJ (Relinquished Baby: Sibling Contact)  EWFC 6, and those of Peter Jackson J as he then was in Seddon v Oldham MBC (Adoption: Human Rights)  EWHC 2609 (Fam) at (1), to the effect that the making of an adoption order brings pre-existing Article 8 rights as between a birth parent and an adopted child to an end.
"… …there are no provisions of either the CA 1989 or the ACA 2002, the AAR 2005, or associated Practice Direction, which absolutely require or place a duty on a local authority to inform, consult, assess or otherwise consider members of the wider family of a child in circumstances such as these" (see Re H at §22) emphasis in the original).
"There is no statutory obligation upon a local authority to make enquiries in every case, and the issue of notification is a matter of discretionary judgment in the light of all the facts of the case." (Peter Jackson LJ in Re A B C at §66);
""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" (at §3).
"… the courts have been keen to emphasise that if family members are identified as potential carers, it is not contemplated that the local authority duty to consider them extends to a duty to "uncover" every stone nor "exhaustively examine" the ground before concluding that a particular option is not realistic (Re R at ). The cases make clear that the court is concerned only with "realistic" options. In Re R, at , it was said:
"Re B-S does not require that every conceivable option on the spectrum that runs between 'no order' and 'adoption' has to be canvassed and bottomed out with reasons in the evidence and judgment in every single case. Full consideration is required only with respect to those options which are "realistically possible"."
""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".
"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".