COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Honourable Mr Justice Mostyn
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
THE RIGHT HONOURABLE LADY JUSTICE BLACK
|- and -
H (A Local Authority)
BA (By his Guardian)
Caroline Smith (instructed by the Local Authority) for the 2nd Respondent
David Boyd (instructed by CAFCAS) for the 3rd Respondent
Simon Murray (instructed by the Attorney General) Advocate for the Court
Hearing dates: Friday 17th December 2010
Crown Copyright ©
LORD JUSTICE THORPE:
"7. F is 49. M is 42. Both parties are of Sikh origin and lived in Afghanistan. They married in March 1986. When in Afghanistan they had three children, now all of age: A daughter SP now aged 23, a son SS now aged 20 and a daughter MK now aged 19. SP, who swore an affidavit and gave oral evidence, is now married and has a child. SS and MK live with M and F. The daughters know of the existence of BA; the son SS does not, and it is not proposed ever to tell him.
8. According to M's unchallenged evidence about 4 years after the marriage F's sister's husband was murdered by the Taliban, actually dying in F's arms. The Taliban also killed other family members including F's brother's wife. F himself was kidnapped and beaten up by the Taliban. Since then F has suffered from mental health problems.
9. In 1998 the family came here and was, on account of their persecution, granted asylum. F has been under constant psychiatric care since, although it is not suggested that he is incapacitated within the meaning given by the Mental Capacity Act 2005. A letter from West London Mental Health NHS dated 19 January 2010 states that F suffers from Severe Depression with Psychotic Symptoms and Post Traumatic Stress Disorder. He suffers from nightmares and terrifying flashbacks of the horrible incidents. He hears the voices of dead family members asking for help.
10. In her affidavit M describes F's unpredictable and frightening behaviour that results from his mental condition. She describes an incident of domestic violence about three years ago when F tried to hit M; the police were called and F was arrested. On other occasions F has threatened to kill himself with a knife. He has tried to strangle M during the night.
11. The police record reveals that in April 2008 MK had to call the police as F was being very threatening and abusive to M. In July 2008 F was arrested for being drunk and disorderly. In August 2008 F, while drunk, slapped MK; the police were called.
12. Obviously life with F must be very challenging. His mental condition means that he is unpredictable and volatile. That said there is no proposal that the family should split up. The marriage continues to function as well as it can. This involves M and F having normal marital intercourse.
13. As a result of one such act of intercourse in October or November 2009 M, then aged 41, fell pregnant. Her evidence to that effect was not challenged and having seen her in the witness box I judge it very improbable that she would have had an adulterous affair with a third party.
14. According to her affidavit she did not realise that she was pregnant at the time. She felt ill, had stomach pains and was vomiting. Her GP told her that it was either acidity or a hernia. She was given medication and told to take exercise. Later the GP told her that it could be the menopause.
15. Although it seems incredible, M did not become aware that she was pregnant until the GP sent her for an ultrasound in May 2010. This aspect of her evidence was not challenged, however surprising it may sound. By then it was too late for an abortion. M told only her daughters. Rightly or wrongly, the decision was made not to tell F or SS.
16. M and her daughters decided that the baby should be given up for adoption. The Local Authority was contacted. A social worker told them about the procedure. M explained that 'my husband should not be told about the baby due to his mental health'. In June 2009 M was told by a social worker that F would need to be told about the baby.
17. On 23 July 2010 BA was born. On the unchallenged evidence he is F's son. There is also the presumption of legitimacy in play. By virtue of the child having been born to married parents F is vested with parental responsibility.
18. On 26 July 2010 M was told again that F would have to be informed and his consent obtained for an adoption.
19. On the day of the birth BA was made a ward of court. Three days later the wardship was discharged and an interim care order made. BA was placed in foster care. There have been a number of review hearings leading to this hearing where the substantive relief sought will be adjudicated. Among the directions was an order that psychiatric evidence be obtained as to F's likely reaction on learning of these events. On 31 August 2010 an order was made for the appointment of an Advocate to the Court.
20. By virtue of the interim care order the Local Authority shares parental responsibility with the parents. BA's birth needs to be registered soon. M has been asked to suggest a name for him and to register his birth. She has declined to do so. The Local Authority will have to do this."
"21. M and SP made affidavits and gave oral evidence. There is a s47 report from the Local Authority dated 9 August 2010. There is a report from a consultant psychiatrist, Dr Ghosh, dated 18 August 2010. This was a desk-top exercise although F's medical records were to hand.
22. I deal first with Dr Ghosh's report. It was very guarded. He stated that it was possible that were F told 'there may be a subsequent deterioration in his mental health'. He was not able to assess what F's likely reaction would be were he to be told. He could not comment on whether F had the capacity to exercise parental responsibility.
23. The s47 report gave details of the police records mentioned above. It also recorded that at 32 weeks' gestation M had been treated for syphilis. While this raises obvious questions the matter was not explored in evidence and no serious reliance was placed on it. The report records SP saying on 23 June 2010 that it was a terrible thing for M, a grandmother, to be pregnant, and that their community would ostracise them if they knew about the pregnancy. Again, this aspect, while potentially relevant, was not explored in the evidence and no reliance has been placed on it.
24. The Affidavit evidence of M is summarised above in the narrative section of this judgment. SP filed a short confirmatory affidavit. In her oral evidence, given through a Punjabi speaking translator, M stated that F was not able to care for himself. He had hit her. She feared he would mistreat the child. She stated in chief:
'He doesn't know what he could do. If he were told he would not take it very well.'
Under cross-examination by the advocate to the court she stated:
'It is not fair for him, and it is not fair for the child. I just want that he shouldn't know about the child. I want no problems,'
In her evidence SP stated:
'If he were told now he would take his anger out on my mother. He would probably attack her, or me. Or he might be quiet and would react later on. He would be fine, maybe.'"
"40. I believe that a distinction is to be drawn between those cases where the relationship with the putative father was fleeting involving no living together or family life; and those where the relationship is well established. In the latter case the father has a family life with the mother (were he to know) an expectation of family life with the child. Re AB is a hybrid case. The relationship between the mother and the putative father was likely the result of an adulterous affair while she was in a long established marriage with her husband: that would put the case into the first category. However, the husband was at least a candidate for paternity: that would put the case into the second category.
41. I do not decide or specify the level of exceptionality needed for the first category. This case is very squarely in the second category. The parties are married and living together. A full family life exists. M positively asserts that F is the father of BA. The presumption of legitimacy applies.
42. On these basic facts the Art 8 right to respect to family life applies very strongly indeed. Equally forceful is the Art 6 right to a fair trial. The right of F to participate in the legal process that has the object of granting his son a new set of parents could hardly be set more high.
43. In such circumstances I am clear that the language used in the cases I have cited is not over-stated at all. A very high degree of exceptionality is required. I would suggest, in conformity with Re H, that nothing less than a significant physical risk, arising from the revelation to F, to the mother, or to children in the family, or to other people concerned in the case, must clearly be demonstrated. "
It is, of course, paragraph 43 that Mr Anelay strongly criticises in support of his appeal.
"44. There is no medical or other expert objective evidence that supports M's case. The evidence of her and SP come nowhere near satisfying the applicable test. For the purposes of this application I am prepared to accept that the revelation to F will cause a degree of upset and confusion in this family. Whilst I do not under-estimate the potential difficulties, I am hopeful that they can be mitigated by the revelation being effected and thereafter managed in a calm and culturally sensitive way by professionals as Thorpe LJ suggested in para 19 of Re AB. Whether the revelation will lead to the consequences predicted by M and SP is pure supposition: the evidence does not lead me to conclude that it is more likely than not that these consequences will eventuate. Even if I were to find that the likelihood of occurrence was more probable than not, I am not satisfied that the harm in question is significant enough to justify the wholesale abrogation of F's fundamental rights.
45. To grant the declarations sought would be to endorse and formalise a great lie. The family would live in a tangled web of deceit with the female members knowing all about this episode and pretending it never happened, while the male members were oblivious to it. It would have to be a very strong case before the court endorsed dishonesty of this type and scale. In almost every case truth is better than falsehood.
46. There is a further reason why to grant the relief sought would be problematic. By s47(2)(a) and s52(6) Adoption and Children Act 2002 the consent of F, as a parent with parental responsibility, is needed before an adoption order can be made. By s47(2)(c) and s52(1) the court can dispense with that consent if the welfare of the child requires it. I find it hard to see how the consent could reasonably be dispensed with if it has never actually been sought. That point aside, it is to be noted that the only ground whereby consent can be disposed is the welfare of BA. Why should concealment of his existence to his father be in his interests? After all, the plan is that he is going to be placed in a closed adoption and will know nothing of his parents until aged 18 at the earliest. Ms. More O'Ferrall argues that because s1(4)(c) refers to the likely effect on BA throughout his life of the making of an adoption order then it may well be very disturbing for BA on reaching age 18 to discover (were he to take steps to find out about his origins) that the revelation of his existence had caused chaos in his birth family. Maybe. But the argument cuts both ways. He might be equally upset to find out that his mother and sisters, supported by me, had in a calculated way withheld knowledge of his existence from his father and brother. I am not persuaded by this welfare argument at all. I find it hard, therefore, to envisage an adoption process ever legitimately proceeding without the knowledge of, and consent being sought from, a parent with parental responsibility."
The role of the Advocate to the Court
Lord Justice Longmore:
Lady Justice Black:
"one can contemplate, and this, I think, is not beyond the bounds of possibility, a situation where service of particular proceedings might give rise to a real danger of very serious violence and in situations of that kind the court would, in my judgment, have a discretion under this paragraph to disapply the rule requiring service"
He held that in determining whether there should be service, he was not determining a question with respect to the upbringing of the child so the welfare of the child, whilst an important consideration, was not paramount. Having weighed up various factors, he put particular weight, in deciding against service, on the destructive effect that it would have on the child's family if the father was served.
"This would be likely to arise under two separate categories, namely, a policy decision of the court, in the exercise of its right to run its own proceedings within the requirements that there should be a fair trial, and secondly, the practicalities of service on a potential litigant or his attendance at the hearing. There will be cases where notice to a father would create a significant physical risk to the mother, to children in the family, or to other people concerned in the case (see for instance Re X (Care: Notice of Proceedings)  1 FLR 186). That might result in the court balancing the fairness to the father of notice, against the real risks of the consequences of such notice."
"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." [my emphasis]
"is clear that 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 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]
"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."
"5. 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 X (Adoption: Confidential Procedure)  EWCA Civ 828 the Court of Appeal added that the interests of the adult parties may also support non-disclosure in an appropriate case.
"in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case." [Lord Nicholls @ page 195]