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England and Wales Family Court Decisions (other Judges)


You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> YY (A Child), Re (Plan for Adoption: Non-Notification of Family) [2024] EWFC 447 (B) (19 December 2024)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2024/447.html
Cite as: [2024] EWFC 447 (B)

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Neutral Citation Number: [2024] EWFC 447 (B)
Case No: ZW24C50342

IN THE FAMILY COURT AT WEST LONDON

West London Family Court
Gloucester House, 4 Duke Green Avenue,
Feltham, TW14 0LR
19 December 2024

B e f o r e :

His Honour Judge Willans
(sitting as a Deputy Judge of the High Court)

____________________

Between:
THE LONDON BOROUGH OF BRENT
Applicant
- and –

(1) XX
(2) YY (through their Children's Guardian)
Respondents

Re YY (A Child)(Plan for Adoption: Non-Notification of Family)

____________________

Olivia Gaunt (instructed by Brent Legal Services) for the Applicant Local Authority
Hannah Fairhurst (instructed by Creighton & Partners Solicitors) for the First Respondent Mother
Sam Whittam (instructed by Russell Cooke & Co) for the Second Respondent Child

Hearing dates: 25 November 2024

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    HHJ Willans:

  1. YY was born on 19 April 2024 and is now approximately 8 months of age. Her mother, XX, has reached a settled decision that she does not wish to care for YY and wishes for her to be placed for adoption. For reasons given by XX she cannot identify YY's father and does not wish for any of her family members to be notified of the fact of YY's birth. Furthermore, she does not want her consulate, relating to country ZZ, to be informed of the birth of YY.
  2. This judgment determines the question as to whether or not I should approve this wish and permit the process towards adoption to be pursued without notifying family members or ZZ.
  3. Both the Applicant and YY's guardian support the position taken by XX.
  4. I will provide a brief summary of the background to the case sufficient to explain the key features underpinning the application. I will then set out my summary of the applicable legal principles given the confusion which appears to have arisen in this case. Finally, I will set out my analysis and conclusions which follow.
  5. Background

  6. XX is a national of country ZZ and is within this jurisdiction on a limited basis visa. She is an adult and there is no suggestion she lacks competency or suffers with any cognitive impairment. She attended hospital complaining of abdominal pains in March 2024 and was found to be approximately 33-weeks pregnant. It appears she was unaware of this fact until informed of the same. She initially sought a termination of the pregnancy but was informed this would not be possible. She made clear she did not wish to keep the baby once born and would wish for it to be adopted.
  7. YY was born on 19 April 2024. On the same day XX signed a s20 agreement providing for YY to be accommodated by the Applicant. In the subsequent period the Applicant engaged with XX on the basis this was a relinquishment case and without there being a need to issue proceedings.
  8. XX gave an explanation that YY had been conceived out of a one-night stand. She stated she was unable to provide details for the male individual. She further stated that she was in a long-term relationship with individual AA, who continued to reside in country ZZ. They were engaged to marry and he was wholly unaware of the one-night stand, the subsequent pregnancy and birth of YY. Were he to become aware of this fact this would place significant doubt on the continuation of the relationship.
  9. As concems her family XX was clear that were they to discover the fact of YY's birth then this would bring significant societal shame on the family and might well potentially place her in a position of genuine danger. In correspondence she has expressed the view that she might be at risk of being killed were YY's existence discovered. She is clear in any event that her family would not accept YY given the circumstances of their conception and birth. XX has also set out her inability to meet the needs of YY in any event given her financial position and other commitments.
  10. As noted above the Applicant initially proceeded on the basis this was a relinquishment case which need not require the initiation of proceedings. However, in its subsequent communications with XX it sensed what it considered to be evidence of her wavering in her views and drew the conclusion it would be better to determine the relevant issues within public law care proceedings.
  11. On 4 September 2024, these proceedings were issued. The application was allocated to Magistrates and listed for a CMH on 24 September 2024. At that hearing XX was not represented although she indicated she was seeking a solicitor. The Court was informed as to the potential arguments relating to non-notification and signalled that were this to be the case there would need to be consideration as to whether the matter should be heard at High Court level and so reallocated the next hearing to a Circuit Judge with a section 9 authorisation. The Court gave sensible case management directions to obtain clarification as to the notification point and for skeleton arguments in respect of any jurisdictional points that might arise.
  12. A further case management hearing was listed on 21 October 2024. This hearing was vacated upon the Court being informed as to delays in respect of XX's statement. The hearing was retimetabled before me on 25 November 2024.
  13. On 21 November 2024 the Applicant forwarded a Part 19 application to the High Court seeking the following declarations:
  14. i) That it need not take any further steps to identify YY's father nor notify him about any proceedings and adoption;

    ii) That it need not notify (nor consider placement) with the maternal family;

    iii) That it need not notify the ZZ consular authorities of the appointment of a Guardian under Article 37(b) of the Vienna Convention 1963.

  15. On receipt of this application the High Court sent the same to the Family Court at West London on the basis that proceedings were engaged at this Court. However, the Family Court at West London were unable to issue the application as it is one that is required to be issued by the High Court. These circumstances came to my attention late on the afternoon of 24 November 2024. I determined I would resolve this issue within the hearing in the first instance rather than cause any further delay to the proceedings.
  16. Legal Principles

    Procedural Points

  17. I intend to address both the procedural principles relevant to this application and then the substantive guidance to be applied when resolving the question before me.
  18. In this case the Applicant issued under Part 19, Family Procedure Rules 2010. In proceeding in this manner, the Applicant considered it was acting in accordance with the leading authority of A, B and C (Adoption: Notification of Father and Relatives) [2020] EWCA Civ 41. It considered it was necessary to apply in this manner to ask the Court to invoke the inherent jurisdiction in order to address the question under consideration. For the reasons I set out below I consider this approach was misconceived.
  19. The referenced case combined varying circumstances that brought the joined cases before the Court. In A the Court was faced with a relinquishment case in which the applicant authority applied under Part 19 to obtain the Court's sanction for an intended process of non-notification. In B and C, the applicant authority had issued care proceedings and within those proceedings the mother applied to injunct the applicant from taking steps to notify the father/family.
  20. It is clear from A, B and C that the legal structure of the situation facing the Court should have no material impact on the manner in which the Court approaches the question under consideration [see §85]:
  21. Decisions in this field are taken both by social workers and by courts and the decisions themselves concern both putative fathers and close relatives. Although some aspects of the statutory material and the case law relate to one type of decision-maker rather than another, and some to one type of family member rather than another, there is in my view no reason for any essential difference of approach. On the contrary, there is great benefit in a consistency of approach to the very varied situations that arise. The decision of a social worker within his or her domain is as important as that of the court within its domain. Similarly, there is no automatic hierarchy as between, for example, a putative father and maternal grandparents. In some cases a notification decision will naturally focus on one or the other, and in some it will focus on both. The factors that govern the outcome will depend on the facts of the case, not on the identity of the relative or of the decision-maker. Nor should the calculus depend upon whether the issue arises within proceedings under the CA 1989, the ACA 2002 or Part 19, or whether the right kind of proceedings have been brought… [my emphasis]

  22. However, in my judgment status of the case before the Court will have a material impact on the nature and form of the application made. In A the application was made under Part 19 given the absence of substantive proceedings under the 1989 or 2022 Acts. In both B and C applications were made within proceedings (in each case by the respective mothers). In this case proceedings are in play but the applicant issued under Part 19. In doing so it considered it was acting in accordance with the guidance set down in A, B and C. In my judgment this was wrong and can be seen to be the case on consideration of §86 of that case:
  23. There will be cases where, applying the principles summarised in this judgment, the local authority can be very clear that no application is required and planning for placement on the basis of the mother's consent can proceed. But in any case that is less clear-cut, an application should be issued so that problems concerning the lack of notification do not arise when adoption proceedings are later issued. In relation to a putative father, that 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 [my emphasis]

  24. Given the fact of initiated proceedings there was no foundation for seeking to invoke the inherent jurisdiction of the Court as the Court could make the necessary decisions within the existing legislative scheme. The application could have been progressed by way of a C2 application form seeking the same relief. The remaining question would then be as to consideration of the appropriate level of Judge to hear the application. This can be seen to be the case by reference to K (Children)(Powers of the Family Court [2024] EWCA Civ 2 in which the President reaffirmed the width and flexibility of the Family Courts and confirmed the power within the Family Court that [see §3]:
  25. Where proceedings have been properly issued, the judge or magistrates to whom the case has been allocated may make incidental and supplemental orders of a kind that could be made under the inherent powers of the High Court where the purpose of such orders is to give effect to their substantive decision.

    Further reference can be had to the Family Court (Composition and Distribution of Business) Rules 2014, schedule 2 to confirm the remedy sought is not one preserved to the High Court.

  26. On receipt of such a C2 consideration should be given to the local practice and guidance of the relevant Family Presiding Judge. In this case after liaison with MacDonald J. I was approved the hear the application sitting on a s9 basis.
  27. Substantive Points

  28. In A, B and C it is made clear the welfare of the child is not the paramount consideration for the Court [§§82-84].
  29. In reaching a conclusion I have regard to the principles governing decision-making found at §89 of the decision and which is set out in full below:
  30. 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 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.
    (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.

    Analysis

  31. In reaching conclusions I am mindful of the one-sided nature of the information provided to me. So far as the identity of YY's father is concerned however, this is the most I could reliably hope to obtain. XX is clear as to her account of the circumstances of the conception and there is no way of piercing the veil of this account without further detail from XX. I consider it most unlikely she will modify her position in this regard and this is particularly so in the light of the intersection between this fleeting relationship and her intended more substantial relationship with AA.
  32. So far as details of her family are concerned, I am satisfied the hurdles in this regard are far from insurmountable. There is detail available and with further investigation there is little doubt in my mind that one could proceed to both notify and investigate the opportunities offered by such family members. The challenge in this regard is in assessing the potential risks that might arise for XX were the Court to take this approach. These risks are broad in nature and have the potential to be lifelong impactful so far as XX is concerned. First, on her case she has a future intention to marry and this plan would be thrown into obvious jeopardy were her illicit relationship, pregnancy, and birth of YY to be discovered. As such her lifelong plans may be fatally undermined were the fact of YY revealed. On the evidence before me there is a high risk of information leakage to AA were information shared with YY's direct family in the first instance.
  33. Furthermore, I have to have regard to the potential implications for XX were the fact of YY revealed to her family. XX is clear her family would react in a highly negative manner were the same revealed. The response would include the potential for her being wholly disowned to being the subject of honour-based violence as a result of the shame that would be perceived to arise out of these facts. At the lower end of this spectrum XX would thus be left without partner or family. At the higher end, XX would be left to live in a situation of continued fear of reprisal. XX's status in this country is not guaranteed and one would need to reflect on the implications for her were she to have to return to her country of birth.
  34. One has to have regard to the benefits of notification which I might be asked to set against the negatives highlighted by XX. It is a matter of question, but rejected by XX, whether in any event her family would be open to, let alone willing to provide future family life for YY. On XX's case this is most unlikely given the referenced shame which accompanies the fact of YY's existence. It is the acutely stark nature of this dynamic that causes this question to require the closest and most careful scrutiny. It is with regard to this account and in the knowledge that it may not be fulsome that I now consider the factors noted above.
  35. (1) Parental Responsibility

  36. I am satisfied this is a case in which shared parental responsibility is not in question. I accept the basic proposition of conception set out by XX as to a fleeting sexual relationship. This being the case only XX has parental responsibility for YY.
  37. (2) Article 8 Rights

  38. Accepting the fundamental case of XX, this is also a point of limited weight in my consideration. YY's biological father has not established Article 8 Rights out of a relationship with XX or out of any expected future relationship with a child in YY's position. His relationship with XX was transient in character and founded upon sexual needs and emotions rather than deeper intentions falling for consideration under Article 8. He had no expectation of establishing such rights and on the evidence has shown no interest in communicating with XX further out of a wish to establish private family life. For the avoidance of doubt, in accepting the substance of the account given by XX, I proceed on the basis that AA equally has no relevant Article 8 Rights.
  39. (3) Substance of Relationships

  40. In the case of the biological father, it follows from the account given above that the relationship has only the most limited substance. It was temporary and transient in character. It appears to have come with no expectations or future commitments.
  41. I am also engaged with the substance of relationships with extended family. This is not a case where the applicant has been able to gather information which it could share with the Court as to the extended family members characteristics and potentials albeit gathered on an anonymous basis. The account of availability and likely response is limited to that shared by XX. Any investigation beyond that shared runs the strong likelihood of leaking the very information sought to be protected. As such it is challenging in the extreme to depart markedly from the details provided by XX. On her account the knowledge of YY's existence would fundamentally recalibrate the relationship between her and her wider family. Such information as is available to me makes clear there is a continuing family relationship but this remains premised on the non-disclosure of YY's existence. That this is possible derives from the current significant geographical dislocation between XX and her family. I do understand her to be in contact with her father and the nature of her case is that this is a relationship she would care to preserve. It is of importance to XX. This places in greater focus her case as to his likely response were he to be informed as to YY. I have an understanding of the likely cultural/societal and religious issues that may come into play and whilst one would not wish to take either a generic or stereotyped approach the points made by XX are ones which are not unfamiliar to the Court when confronted in similar circumstances in which conception out of wedlock is considered a matter of significant shame. It is little comfort to the XX that the community in which she currently lives does not broadly share these restrictive views given she wishes to live her future live embedded into the community from which she derives. The net effect of this consideration is that there is a relationship of substance between XX and her family and therefore incidentally potentially between YY and the family. However, there are good grounds for considering the circumstances of YY's conception may mean the form and substance of the relationship is likely to be voluntarily restricted by the same family members.
  42. I have to say this is a concerning aspect of the assessment given the extent to which it turns on XX's own account. I have considered the extent to which the Court could attempt to pierce the veil of secrecy without disclosing the fact of YY's existence. Having considered this point with real care I have reached the conclusion the Court is in the invidious position of having to take or leave the account. There is little room for the Court to take a half-way-house approach.
  43. (4) The likelihood of placement

  44. I have addressed aspects of this factor in the foregoing sections. As noted in A. B and C one might have regard to the information available to ascertain whether a third party is a candidate worthy of more detailed consideration. In this case there really is no route towards obtaining such information without taking an initial step towards notification. Secondly, one must have regard to the risks attendant on giving notice. As set out these are at a high level without any consequential benefit for YY.
  45. (5) The impact….on the mother and other of notification

  46. As presented to me this is a factor that is bound to carry significant weight. XX is clear as to the likelihood of ostracism by her family and the society from which she derives. Further, on her case the relationship with AA has solidity and is due to be concluded by marriage within the near future. Notice of YY would fundamentally undermine this relationship. As such XX would not only lose the support of her family but would also find herself wholly stranded from the hopes and expectations she had built prior to YY's conception. This plainly has the potential to have the most significant negative impact on XX at an emotional and personal level. From her perspective eveything is on the line. It falls far from a temporary level of embarrassment that might justify the Court acting contrary to her wishes.
  47. (6) Cultural and religious factors

  48. I have addressed this factor above. There is a likelihood that cultural factors will impact negatively so far as YY is concerned.
  49. (7) The availability and durability of the confidential information

  50. As noted above details as to the biological father are not available and there is no basis for considering XX will adapt her position in this regard. There is a foundation for establishing better details as to the members of the maternal family but I have noted the difficulties in doing so without giving inadvertent notification of YY. On the facts of this case, and subject to XX's continued silence, there is a strong basis for considering confidentiality would be durable, by which I mean knowledge of the fact of YY would not otherwise leak to those who would not otherwise be notified. In particular the geographical distances in play make this likely. In contrast I consider this is not a case in which it is possible to commence a process of limited notification to a specific candidate or individual without risking more widespread leakage of the information to individuals over whom the Court would have greater concern.
  51. (8) Impact of delay

  52. There is little of particular note to add under this heading save to repeat the fact that XX is currently proceeding towards a planned marriage in the near future and it would be deeply problematic for her to do so whilst there remained uncertainty as to whether the fact of YY would later be disclosed. On the evidence she appears to have delayed this marriage on one occasion as a result of YY's birth. Further delay may cause deeper difficulties to arise.
  53. (9) Other considerations

  54. No further additional points arise.
  55. Notification of the ZZ Consulate

  56. The applicant additionally seeks a declaration that it need not notify ZZ of YY's existence on the premise that YY is by reason of the circumstance of their birth a national of that country. The applicant has regard to the terms of the 1963 Vienna Convention and the guidance found in Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam) (per Munby P.) but further draws on the conclusions set out by Keehan J. in Re O (A Child: The Vienna Convention on Consular Relations 1963) [2021] EWHC 908 (Fam). I have considered this line of authority in reaching my conclusions.
  57. Conclusions

  58. I have reached the clear conclusion it is appropriate to make the declarations sought by the applicant, and supported by all other parties, permitting it to take no further steps towards identification of YY's father, the non-notification of maternal family members, and; the non-notification of ZZ.
  59. In my assessment the impact on XX of proceeding contrary to her wishes will likely be substantial and lifelong. I accept it will likely fatally damage the relationship with AA. Furthermore, I accept it will have a highly damaging impact upon the relationship between XX and her wider family having regard to cultural views held as to the circumstances surrounding the conception and birth of YY. Whilst I appreciate the account on which I draw is provided by XX alone and is incapable of being tested to a high degree it is one which is neither fanciful nor inconsistent with the Court's understanding from experience of the issues likely to arise in such a context. As such it is a credible and concerning account and the Court would have to have a sufficient level of confidence to take this step contrary to the stated wishes of XX. I do not have such confidence.
  60. In reaching this decision I have reflected on potential benefits tfor YY of further investigating the situation. I accept the prospects of placement within the family are very low were they to be informed as to YY's existence. As such the risks attendant on giving notice are not offset by balancing positives.
  61. I am confident the concerns expressed are not of a transient nature nor that they are likely to be overcome once the fact of YY is known to the family. On the information available they are likely to be embedded in the deep cultural outlook of the family reinforced by the surrounding community which likely shares a similar approach. It would seem doubtful from this setting a plausible option for YY would materialise. As such there is a strong likelihood that such an investigation would lead to enduring damage without any material purpose or prospect of success.
  62. In respect of ZZ, it is clear to me that such notification is perceived as an adjunct to proceeding to notify the wider family. Given my conclusions in such regard I have further concluded this is a case in which the applicant should have permission to proceed without giving such notification. It is neither in the welfare interests of YY to give such notice, having regard to the benefits to her of the same, nor for XX (ZZ's citizen) given the implications and danger for her were such notification to give her family knowledge of YY, as it most likely would.
  63. I will make the declarations as sought. I will require the applicant to issue a retrospective C2 application so as to regularise the position. Any corrections or requests for clarification should be provided by 4pm on 17 December 2024. I propose to hand down this judgment without attendance (unless the same is requested) at 9.30am on 19 December 2024. I would ask the paties to identify any points on anonymity / publication by 4pm on 17 December 2024.
  64. His Honour Judge Willans

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