England and Wales Family Court Decisions (other Judges)

IN THE HIGH COURT OF JUSTICE
IN THE EAST LONDON FAMILY COURT

		11. Westferry Circus, LONDON E14 4HD

HER HONOUR JUDGE CAROL ATKINSON :

1. At the end of March 2016 at a hospital in East London a baby girl was born. I shall call her Hannah. Prior to her birth, her mother indicated that she wished to relinquish Hannah to the local authority (the LA) for adoption. Following the birth she has maintained that position and, on 15^th June 2016, she signed consents pursuant to sections 19 and 20 of the Adoption and Children Act 2002 (ACA 2002). The mother and child had a goodbye contact on 31^st August 2016.
2. At the time of her birth the mother was married to Mr H though she had been separated from him since early 2013. He is not, she says, Hannah's father. Hannah's father is a man I shall refer to as Mr F. The mother has refused to give any details regarding the identity of Mr F. Neither Mr H nor Mr F are named on the child's birth certificate.
3. The LA, as the adoption agency in this case, seeks declaratory relief, pursuant to Part 19, in the following terms:

a. That no person, other than the mother, holds parental responsibility for the child;

b. That neither Mr H nor Mr F is to be a respondent to any future application brought pursuant to the ACA 2002;

c. That the local authority need not and should not take any steps to inform or consult either Mr H or Mr F regarding the child's birth or the intention to place her for adoption;

d. That the local authority need not and should not take any steps to inform or consult the maternal family regarding the child's birth or the intention to place her for adoption.

4. The power to grant such relief arises in the exercise of the inherent jurisdiction. Accordingly, this matter is listed before me sitting as a Deputy Judge of the High Court. Let me set out the circumstances which have led to this application in a little more detail.

Essential Background

5. The full background in set out in the affidavit prepared on behalf of the mother, the appended documentation arising from her divorce petition and the social work statement. The following facts are not in dispute.
6. The mother is part of a large extended family and a practising Muslim. The mother and Mr H were married for a number of years. They separated in early 2013. The marriage was an arranged marriage and whilst the mother does not assert that she was 'forced' to marry she was under enormous pressure to marry and did so to comply with her family's expectations of her. In the result, she describes feeling unhappy throughout. She maintains that whilst married they led virtually separate lives, that she was poorly treated by her husband's family, with whom she lived, and cut off from her own family. They had virtually no sexual relationship and when in early 2013 a situation arose that caused her concern at the pressure building upon her as she had not had a child in the marriage, she contacted her family and left. She maintains that she has no contact with Mr H since.
7. In late 2015, the mother received a petition for divorce. Her husband had issued the proceedings based upon what appears to be her unreasonable behavior. The facts relied upon are supportive of her own description of the marriage, citing the fact that the mother had shown "no love of affection since the beginning of the marriage" and significantly confirming her account that they had been separated since early 2013. Decree Nisi was pronounced in late 2015 and that decree was made absolute in early 2016. Hannah was born prior to the final decree and therefore whilst the marriage was technically still subsisting.
8. After separating from Mr H, the mother became involved in one intimate relationship with Mr F who she met at the end of 2014. She maintains that she was in that one relationship at the time of the child's conception and that Mr F is Hannah's father. The mother has not provided any contact details in relation to Mr F and has consistently maintained that she will not provide any details. In her evidence, she describes how it became clear to her that they each wanted different things out of the relationship. She last saw him in the summer of 2015.
9. The mother did not become aware that she was pregnant until February 2016. She is clear that Mr F must be the father. The mother was clear that her family could not know about the pregnancy because as she sets out in her statement she is fearful of the reaction from her extended family and the wider community. At best, she describes the impact of the 'shame' of her behaviour and at worst she raises the possibility of 'honour' based violence.
10. Accordingly, the mother indicated prior to the child's birth that she wished to relinquish the child for adoption. In preparation for this she secured a place in a refuge where she stayed for the last few weeks before the birth. She told her family that she was on a residential course. After her birth Hannah was transferred hospitals due to breathing issues which have happily resolved. Mother had only one contact with her after the birth.
11. Hannah was placed, with the consent of the mother, in a foster-to-adopt placement the day after her birth and has remained there ever since. She is settled and thriving. The mother signed the requisite consents pursuant to section 19 and 20 ACA 2002 in June 2016.
12. Amongst the blood relatives of the child only the maternal aunt is aware of the child's birth and existence and the mother's plan to relinquish.

The appropriateness of the chosen legal route

13. In a situation in which a mother has made proper arrangements for the care of her child in an alternative permanent family, without more there are generally no threshold grounds. There are certainly no threshold grounds here. So, there will be neither care nor placement proceedings. There will need to be, in due course, an adoption application and through that means there will be full consideration given to the welfare analysis prior to the making of any orders.
14. The local authority argues that in these circumstances the preferred legal route is to seek declaratory relief in advance of any application to adopt to define the parameters of any enquiries and reduce any difficulties arising later in the adoption application. I am grateful to Mr Barnes for his skeleton argument in which he has directed my attention to the authority which supports this proposition. I agree with his analysis.
15. The difficulties which can arise if a simple adoption application route is taken were highlighted by Cobb J in his judgment in the case of In re A (A Child) (Baby Relinquished for Adoption: Case Management) [2016] EWFC 25; [2016] 4 WLR 104. In that case Cobb J faced an application to care for the subject child from a birth relation within an adoption order application following a relinquishment.

"47. Recent developments in this case underline the importance of a local authority: (i) considering carefully the issues of possible family placement at the earliest opportunity, (ii) assessing critically from the outset what the mother and father say about their families, not merely just accepting at face value their dismissal of family placement here or abroad (see In re C v XYZ County Council above), and (iii) being proactive in addressing the potential complications." [emphasis mine]

16. Turning to consider how a local authority could seek to proactively address such potential complications, Cobb J went on:

"50. Accordingly, where a local authority in any case of this kind is in doubt about either the need to investigate and/or assess family members, and/or its obligations under the 1963 Vienna Convention to notify the relevant consulate, and/or the appropriateness of engaging the central authority of the foreign state to request co-operation (perhaps for the purposes of assessing a potential kinship carer), it may wish to consider making a pre-emptive application to the court under Part 19 of the FPR 2010 ("Alternative procedure for applications"). By this process the local authority can request the court to make a "decision on a question which is unlikely to involve a substantial dispute of fact" (rule 19.1(2)(b)). It is I suggest the mechanism which is contemplated by rule 14.21 of the FPR 2010 for the invoking of the inherent jurisdiction where no proceedings have started and an adoption agency or local authority requires "directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption". In this situation, Part 19 provides an obvious mechanism. The local authority here suggests that clarification of whether there should be notification to consular officials, and/or notification to or assessment of extended natural family is directly analogous with the issue of the possible non- notification of a father without parental responsibility. Part 19 of the FPR 2010 derives from Part 10 of the Family Procedure (Adoption) Rules 2005 (SI 2005/2795); the procedure under Part 19 helpfully permits an application to be made without naming a respondent (FPR 2010 r 19.4 and FPR Practice Direction 19A, para 2.2).

51. Clearly a significant advantage of making a pre-emptive application in the appropriate case is that delay can be avoided, even though there is a small (but in my view acceptable) risk that cases which are in reality straightforward acquire artificial or imagined complications. I do not suggest that a Part 19 application is likely to be appropriate in every case of this kind; the local authority will need to exercise a judgment on the particular facts, having regard to the individual circumstances of the subject child. But it may have been well deployed in this case to avoid the situation which has arisen many months after the adoptive placement has been made."

17. In the very recent case of In the matter of TJ (Relinquished Baby: Sibling Contact) [2017] EWFC 6, whilst considering an application for declaratory relief, Cobb J again endorsed the use of Part 19 as the "preferred route". Given the facts here I agree that this is a case which is ideally suited to such a proactive course. Let me turn to the substantive issues.

Parental responsibility

18. Pursuant to section 2 of the Children Act 1989:

"(1) Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child.

(1A)…

(2) Where a child's father and mother were not married to each other at the time of his birth—

(a) the mother shall have parental responsibility for the child;

(b) the father shall have parental responsibility for the child if he has acquired it (and has not ceased to have it) in accordance with the provisions of this Act."

19. Mr H does not acquire parental responsibility for Hannah simply because he was married to the mother at the time of her birth. For section 2 to apply Mr H must be "the child's father".
20. There remains a presumption that a child born in a marriage is the legitimate child of the husband. That presumption is rebuttable on the balance of probabilities.
21. I have no DNA evidence as to who the father of Hannah is. However, in this case, the mother's affidavit provides evidence that the parents separated permanently in early 2013. I note that Mr H's petition for divorce asserts that they separated in early 2013 "from which time they have not cohabited". Whilst there is a small discrepancy as to the precise date the essential point remains and the mother's sworn evidence is that she has had no physical contact with Mr H since early 2013. The background facts of the case as checked over by the social worker support this evidence.
22. On the basis that the child was conceived in mid 2015 that is sufficient evidence, in my view, to rebut the presumption of legitimacy and accordingly Mr H does not, in my judgment, have parental responsibility for Hannah. I accept the mother's evidence and find that Mr H is not the father of the child.
23. I also accept the evidence of the mother that she had no intimate relationship with anyone other than with Mr F at the time of Hannah's conception. The acquisition of parental responsibility by an unmarried father is provided for by section 4:

"(1) Where a child's father and mother were not married to each other at the time of his birth, the father shall acquire parental responsibility for the child if—

(a) he becomes registered as the child's father under any of the enactments specified in subsection (1A);

(b) he and the child's mother make an agreement (a "parental responsibility agreement") providing for him to have parental responsibility for the child; or

(c) the court, on his application, orders that he shall have parental responsibility for the child."

24. Mr F, however, is not registered on the child's birth certificate and has not acquired parental responsibility by any of the other means set out at section 4. So, neither Mr F nor Mr H has parental responsibility in my view.
25. As a birth parent without parental responsibility, Mr F may be given notice of the proceedings and may apply to the court for party status (Rule 14.3 FPR 2010). However, as we have no information from the mother regarding the identity of Mr F this is simply not possible.
26. That brings me to the issue of confidentiality surrounding the birth of this child.

The relinquished child and confidentiality

27. In this case, as in many cases involving relinquished children, the local authority into whose care the child has been relinquished will be mindful of the possibility that there might well be a family member who, had they known of the existence of the child, might have been prepared to care for her. The mother in this case is clear, however, that she wants neither Mr H, Mr F nor his or her extended family to be made aware of the birth of this child or of the adoption. She sets out her reasons why in her affidavit. I need not set those details out here. Her position is not unusual in this sort of case.
28. There have been several cases recently concerning babies relinquished for adoption either before or at birth. Those authorities have dealt with the balance to be struck between maintaining the confidentiality so often desired by the mother and the extent to which enquiries within the family are necessary to satisfy the court that there is sufficient information upon which to make an adoption order.
29. The "strong social need, if it is lawful, to continue to allow some mothers…to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it" was recognised by Holman J in Z County Council v R [2001] 1 FLR 365. As Holman J pointed out there is there no absolute duty upon the local authority or the guardian or the court to inform or consult members of the extended family.
30. Endorsement of this came with the Court of Appeal decision in C v XYZ County Council [2007] EWCA Civ 1206 though qualified by the observation that the need to make enquiries might arise if it was necessary in the interests of the child. Further, the local authority should examine 'critically' what the mother had to say about the circumstances of the birth and her reasons for wishing it to remain confidential.
31. More recently, we have the decisions of Baker J in In re JL and AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam); [2016] 4 WLR 40 and then of Cobb J in In re A (A Child) (Baby Relinquished for Adoption: Case Management) [2016] EWFC 25; [2016] 4 WLR 104. Both Baker J and Cobb J approached the situation confronting each of them by reminding themselves that no matter the circumstances, a thorough analysis of all the realistic options was nevertheless necessary before making an adoption order.
32. From these authorities, I draw together the following points as being of application to this case:

a. There is a value to society in affording a mother the confidentiality necessary to her in deciding to make provision for her child through the route of adoption although confidentiality cannot ever be guarantee;

b. There is no absolute duty upon the local authority, the guardian or the court to notify, make inquiries about or consult with members of the extended family though the duty to make inquiries might arise if necessary in the child's best interests;

c. The local authority should examine the mother's account of her circumstances critically in deciding whether and, if so, what inquiries are necessary;

d. Although it may be unnecessary in the case of a relinquished child to carry out 'the profound investigations' usually seen as necessary before the making of an adoption order, a thorough analysis of the realistic options is still required before a decision can be made that "nothing less will do".

e. In some cases, an analysis of the circumstances will lead the local authority to conclude that it is unnecessary to inform the natural family, but in other cases the authority will decide that it must consult the extended family to carry out the necessary evaluation of the realistic options.

f. Each case turns on its own facts, but the child's welfare will always be the paramount consideration.

Applied to the facts of this case

33. In this instance, notwithstanding that the maternal family have not been informed of the child's birth the local authority has analysed the available information and considered the possibility of placement within the maternal family during a full analysis of the available options.
34. I appreciate at once that their assessment of the maternal family is dependent upon the information that they have received from the mother who seeks to keep them in the dark. I have read the statement of the social worker. I note the extensive steps taken by mother to avoid her family being made aware of the pregnancy and birth. The Guardian highlights the significant, albeit historic, involvement by Children's Services with the mother's extended family, set out on pages 10 to 12 of the social worker's statement and she rightly takes very seriously the concerns raised by mother of possible 'honour' based violence against her and Hannah should the birth be discovered by her family or the family of her former husband. The Guardian is of the view that a critical examination and careful consideration has been given by the local authority as to those risks.
35. I agree that considering the evidence provided by the mother as to the likely reaction to the child having been born in the circumstances she describes it is unlikely that an appropriate alternative placement would be available within the extended family generally. Further, I agree with Mr Barnes that considering the child's welfare "throughout her life" the child has no welfare interest in the notification of her birth causing significant detriment, even risk, to her mother.
36. In relation to Mr F the mother has clearly indicated that she is unwilling to inform the local authority or Court of his identity. As a consequence, it is not possible for the local authority to take any steps to notify him or his family or to take further steps to explore this as a source for an alternative placement.
37. The Guardian would, in an ideal world, want there to be further exploration of the paternal family but acknowledges that this is not possible in circumstances where the mother is not willing to identify him and has not provided information that would allow for his identification. I would also be concerned that even the most carefully handled contact with the paternal family might open the possibility of the information reaching the mother's family thereby exposing Hannah and her mother to the same risks. That is impossible to assess given his identity is unknown but it must be weighed in the balance.
38. There is a limit, in such circumstances, on how far a Court could or should bring further pressure to bear upon the mother and I agree with Mr Barnes that in this case we have reached it.
39. These declarations will preserve the confidentiality of the birth of this child and they accord with the wishes of the mother. She is the only person who holds parental responsibility for the child and, while her views are not decisive, they are "important" and "significant". [see In the matter of TJ (Relinquished Baby: Sibling Contact) [2017] EWFC 6 at paragraph 23]
40. I note that Hannah has had the benefit of placement in a foster-to-adopt placement and is reported to have settled well and developed an attachment to her carers (likely in due course to be her adopters). As Mr Barnes correctly observes this living connection is likely to give rise to rights to a family life under Article 8 whereas the theoretical, but unrealised, potential of any blood relative's relationship with the child is unlikely to enjoy such protection. [see Cobb J in In the matter of RA (Baby Relinquished for Adoption) [2016] EWFC 47 at paragraphs 43(vii) and 43(viii)(c)]

Conclusion

41. Based on the matters set out above, I am satisfied that the Court has the power to grant the declaratory relief sought by the local authority and in this case the Part 19 procedure is the correct route to seek that relief.
42. I am satisfied that the local authority has critically examined the information given by the mother regarding the circumstances of the birth and the possible consequences which would flow from its discovery. In my view, the local authority has carried out a proper analysis and has rightly concluded that a plan of adoption is the only plan capable of meeting the child's welfare needs. I agree that in the circumstances of this case there is no justification for going behind the confidentiality sought by the mother.
43. Accordingly, I make the declarations sought considering that they will provide the greatest possible certainty for Hannah going forward and best meet her welfare needs.