England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 July 2007

Mr Justice Munby :

1. L was born on 29 June 2006. Her parents were not married. It would seem that their relationship was brief, lasting no more than a few weeks.
2. Since before L's birth, her mother, C, has been resolute that L should be adopted. She concealed her pregnancy from everyone – it seems that L's father was unaware of the pregnancy and remains unaware of his daughter's existence. She did not seek any antenatal health care. She presented herself at hospital in labour, giving birth to L two hours later. She left hospital within two hours of L's birth without seeing her, but having named her L, and requesting that she be adopted. And she has not seen her daughter since, refusing even to receive photographs of her.
3. Since 30 June 2006 L has been in the voluntary care of the local authority.
4. C has given the local authority certain information about L's father. But she professes to be unable – the local authority and the guardian suspect that she is able but unwilling – to provide information which would enable him to be either identified or traced. Mindful of its obligations to the father, and unable to progress matters in any other way, the local authority has invoked the assistance of the court.

The proceedings

5. On 3 April 2007 the local authority issued an originating summons seeking permission pursuant to section 100 of the Children Act 1989 to invoke the inherent jurisdiction of the court. The substantive relief it sought was orders (i) that the local authority need not take any further steps to identify L's father or to notify him of its intention to place L for adoption and (ii) that it need not inform or consult any members of the maternal family regarding L's birth or the intention to place her for adoption.
6. The matter came before me on 10 May 2007. The local authority was represented by Mr Aidan Vine. Its evidence was set out in an affidavit sworn by L's social worker on 3 April 2007. The mother appeared in person, assisted by a McKenzie friend. Whilst at court she countersigned a copy of the social worker's affidavit, indicating those statements within it with which she either agreed (the majority) or disagreed.
7. I gave the local authority leave to apply for orders under the court's inherent jurisdiction, made L a party to the proceedings and pursuant to FPR rule 9.5 directed than an officer of Cafcass be appointed as her guardian. I timetabled the case to a final hearing and directed that the mother's attendance at future hearings was not required unless she was specifically ordered to attend.
8. The matter next came before me on 15 June 2007. The mother chose not to attend. L's guardian was represented by Miss Joy Brereton. There was a further affidavit sworn by the social worker on 12 June 2007 stating that the mother "does not want to work with the local authority or engage herself with the planning for her daughter. She appears to want nothing further to do with [L]." The mother had still provided no further information about L's father.
9. The guardian had filed a report dated 11 June 2007 recommending (and giving clear and convincing reasons for her recommendations) that I should direct (a) that the local authority need not inform or consult the maternal family regarding L's birth or placement, (b) that the local authority should take steps to inform L's father of her existence and (c) that to this end, the mother should disclose all information she had about L's father, including his surname and last known address.
10. I made an order that the local authority "need not and should not" take any further steps to inform or consult any members of the maternal family regarding L's birth or the intention to place her for adoption. The mother was adamant that her family should know nothing about what had happened and it seemed to me that in all the circumstances this understandable desire should be respected.
11. There is, if I may say so, much humanity and wisdom in what Holman J said in Z County Council v R [2001] 1 FLR 365 at page 367:

"The dilemma must, in fact, be a very old one. Although no statistics are available, many children must have been adopted over the years, outside their birth families, and with no knowledge by, or investigation of, other members of the birth family. Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgment, a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies … There is, in my judgment, a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes."

Having considered the matter by reference both to our domestic law and to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Holman J concluded at page 375 that it was indeed lawful. I agree.

12. However I took the view that a further attempt should be made to obtain information from the mother about L's father. So the order I made contained this recital: "upon the court indicating that the information required under paragraph 2 below is necessary in the interests of [L]'s welfare throughout her life and urging [the mother] to provide the information." Paragraph 2 of the order directed the mother to disclose to the guardian by 3 July 2007, for the purposes of disclosure to the court and the local authority, the following information about L's father: his full name, all addresses at which he had been known to reside, including his last known address, all known telephone numbers and email addresses, his last known place of work and his date of birth.
13. I listed the matter for further hearing on 6 July 2007 and directed that the mother must attend that hearing unless, having complied with the order to disclose, she was notified that her attendance was not required.
14. I declined to attach a penal notice to any part of that order.
15. The guardian wrote to the mother on 19 June 2007 and spoke to her on 3 July 2007. The mother told her that she was unable to disclose any further information about L's father.
16. The mother attended the hearing on 6 July 2007. She told me that there was no further information about L's father she could provide. Having heard submissions both from Miss Louise Potter, who was representing the local authority in Mr Vine's unavoidable absence because of other professional commitments, and from Miss Brereton, I concluded that there were no further steps that could sensibly be undertaken.
17. Both Miss Potter and Miss Brereton properly stressed the need in L's interests to progress matters without any further delay. L was now just over a year old. She urgently needed finality. An adoption panel appointment had been booked for 27 July 2007 and papers needed to be filed by 13 July 2007.
18. Accordingly I made an order in the following terms:

"Upon [the mother] in person confirming to the court that she has no further information concerning the identity of [L]'s father

And upon the court having no further information concerning the identity of [L]'s father notwithstanding its order of 15^th June 2007

…

IT IS ORDERED

1 The [local authority] need not and should not take any further steps to seek to identify [L]'s father or to inform or consult him regarding [L]'s birth or the intention to place her for adoption.

2 The [local authority] need not and should not take any further steps to seek to identify or to inform or consult any members of the paternal family regarding L's birth or the intention to place her for adoption."

19. It is of course possible, though I think it highly unlikely, that at some stage before L's adoption is finalised the mother may change her mind and decide to make further disclosures. If she does, the position will obviously need to be reviewed in the light of whatever further information she does provide.

Discussion

20. In a most helpful skeleton argument which he prepared for the hearing on 15 June 2007, Mr Vine provided me with a meticulous analysis both of the relevant legal framework and, more particularly, of the relevant and by now fairly extensive case law.
21. Rule 108 of the Family Proceedings (Adoption) Rules 2005 enables a local authority in circumstances such as this to "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." So whether under the inherent jurisdiction or under that rule I plainly have jurisdiction to give the local authority the relief it seeks.
22. The duty of a local authority under section 22(4) of the Children Act 1989 to consult with a child's parent before making any decision with respect to a child whom the local authority is looking after (and L is, of course, such a child) is qualified by the important words "so far as is reasonably practicable." So the local authority's duty under section 22(4) to engage with L's father is, in the circumstances, so qualified as to be at present non-existent.
23. The Adoption and Children Act 2002 permits the placement of a child for adoption (see section 19) and the making of an adoption order (see section 47) in each case (see sections 52(2) and 52(6)) without the consent of and (see rule 23(1) of the FP(A)R) without notice to a father who, as in the case of L's father, does not have parental responsibility. That said, the court has power (see rule 23(3) of the FP(A)R) to direct that such a father be joined as a party to such proceedings.
24. Mr Vine has taken me to the authorities in respect of the corresponding provision under the old law, rule 15(3) of the Adoption Rules 1984: see Re R (Adoption: Father's Involvement) [2001] 1 FLR 302, Z County Council v R [2001] 1 FLR 365, Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646, Re M (Adoption: Rights of Natural Father) [2001] 1 FLR 745, Re J (Adoption: Contacting Father) [2003] EWHC 199 (Fam), [2003] 1 FLR 933, Re C (Adoption: Disclosure to Father) [2005] EWHC 3385 (Fam), [2006] 2 FLR 589, and Birmingham City Council v S, R and A [2006] EWHC 3065 (Fam), [2007] 1 FLR 1223.
25. I do not propose to add to the jurisprudence. The court has an unfettered discretion, to be exercised having regard to all the circumstances and in a manner compliant with the requirements of the Convention. That said, and where there exists family life within the meaning of article 8 as between the mother and the father, one generally requires "strong countervailing factors" (Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646 at para [48]), "very compelling reasons indeed" (Re C (Adoption: Disclosure to Father) [2005] EWHC 3385 (Fam), [2006] 2 FLR 589, at para [17]) or "cogent and compelling grounds" (Birmingham City Council v S, R and A [2006] EWHC 3065 (Fam), [2007] 1 FLR 1223, at para [73]) to justify the exclusion from the adoption process of an unmarried father without parental responsibility. At the end of the day, however, every case is different and has to be decided having regard to its own unique circumstances.
26. This all assumes, of course, that there is family life. Based on what the mother has told us of her relationship with L's father, I am sceptical as to whether he can in fact pray in aid article 8 of the Convention. If what she has said is correct, there was almost certainly no family life. But given how little we know, it would not be safe to proceed on that basis. I shall assume, though without deciding, that the father's rights under article 8 are indeed engaged.
27. Much more significantly, of course, this all assumes that the father's identity is known, because otherwise there is a potentially insuperable obstacle to engaging him in the process. Can the mother be compelled to reveal his identity? This is the issue at the heart of the present case.
28. In Z County Council v R [2001] 1 FLR 365 at page 366, Holman J speaking of the father said:

"There is no power to compel her to reveal the identity and, in the circumstances, all proceedings must necessarily take place without notice or reference to the father or further information about him, than that which the mother has volunteered."

Dame Elizabeth Butler-Sloss P observed of this in Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646 at para [31] that Holman J "assumed" that there was no power, having heard no argument to the contrary. She herself (see at para [52]) did not have to consider whether there is such power.

29. There may be some room for doubt as to whether, when he said "there is no power," Holman J was referring to power as a matter of law or power as a matter of pragmatic reality. I doubt that, in strictness, there is as a matter of law no power in the court to order a mother to disclose the identity of her child's father. After all, the powers of a judge exercising the inherent jurisdiction are theoretically limitless, though in practice there are well recognised limitations on the exercise of the jurisdiction. But whether it is proper, whether it is appropriate and prudent, to exercise such a power, assuming it to exist, whether it is appropriate and prudent to attempt to compel an unwilling mother to disclose the name of her child's father, is a very different thing.
30. Mr Vine and Miss Potter on behalf of the local authority and Miss Brereton on behalf of the guardian made common cause in identifying the benefits or possible benefits to L, now and throughout her life, of knowing who her father is. Like any other child, L should have the opportunity of growing up within her birth family if at all possible; so adoption should not normally be considered until all possible family members have been ruled out. It may be that there is 'out there' a father who would want to and be able to bring her up. If her father cannot himself bring her up then it might nonetheless be appropriate for L to have contact with him, even if only indirect contact after she has been adopted. And even if she is to be adopted, then for the purposes of life story work L needs to know as much as possible about her father and his family, so that, for example, she can in later life, if she chooses to do so, try and trace him. Also she needs the emotional security of knowing that all this was investigated, along with any relevant medical, ethnic and financial/inheritance matters, before the final decision for her adoption was made. Her mother's stance is denying her all these things.
31. These are compelling arguments, and they explain why I made the order I did on 15 June 2007 and why that order was expressed as it was.
32. But the reality remains. As Miss Brereton put it, the court can request that the mother divulge more specific details – that I have done, though without success – but it is the ultimate enforcement of the request that presents the court with a difficult hurdle. As Mr Vine put it, there is no mechanism, certainly no effective mechanism, by which the court can compel the mother to disclose more than she has currently revealed about L's father.
33. The fact is that the local authority and the guardian and the court have tried very hard but the mother has made her position perfectly clear. Patient explanations have been given to the mother, both out of court and in court, as to why it is so important from L's point of view that we learn who her father is. The mother's position remains as it has been throughout. There is very little prospect – in truth, virtually no prospect – that she is going to volunteer any further information about L's father.
34. It may be, and the mother is steadfast in the assertion, that there is in fact nothing more to disclose. The local authority and the guardian (and not without grounds I have to say) suspect there is more she could tell us if she chose to.
35. Let me assume that this is so – I emphasise I am making no finding that it is. Where does it take us?
36. In the first place, although one can only speculate as to why the mother should be adopting such a stance (if indeed she is), I would not want to assume that she is acting otherwise than properly by her own lights. We take a different view, but for all I can know she may conscientiously believe that it is not in her daughter's interests to know anything of her father – and who is to say that she might not be right.
37. But what am I to do? The mother has told me herself in court – not in the witness box on oath but from the well of the court – that there is nothing more she can tell us. There is no reason to believe that she would say anything different were she to be required to go into the witness box and either take the oath or affirm. It would naïve to imagine that someone who on this hypothesis is prepared to lie when addressing a judge direct is suddenly going to volunteer the truth merely because put on her oath.
38. And is it to be suggested, if she maintains her denial, that she should then be cross-examined (and if so with what degree of vigour?) so that the truth can be extracted from her? I confess that I find the idea very disturbing. There is something deeply unattractive and unsettling in the idea that a woman in the mother's position should be cross-examined in order to compel her to reveal the name of her child's father. And there is something deeply unattractive and unsettling in the idea that a woman in the mother's position should be cross-examined (as on this hypothesis would almost inevitably be the case, for how else is cross-examination likely to elicit the relevant information) as to the nature, extent and duration of her relationship with the father. In relation to matters as personal and intimate as this we should be wary of seeking to open windows into people's souls. And would it in any event be right to subject the mother to prying cross-examination on the (probably dubious) double hypothesis that she is at present not telling the truth but that, if cross-examined, the truth will out?
39. And in any event, where would cross-examination get us? It is possible that the mother would in fact make further disclosures, though I rather doubt it. Suppose, as I think much more likely, that she makes no further disclosures of any significance. I might, for all I know, be left with a powerful impression that she was not telling the truth, but that of itself would get us nowhere. Contempt could not be proved unless I was satisfied to the criminal standard – satisfied so that I was sure; satisfied beyond reasonable doubt – that the mother was telling lies. That, I suspect, is an unlikely outcome. And suppose that I was satisfied to the criminal standard that she was telling lies. Could it seriously be suggested that she should be punished, even sent to prison? Surely not. Punishment would surely be unthinkable.
40. The whole process smacks too much of the Inquisition to be tolerable. And it is not to be justified merely because we believe, however strongly, that what we are doing is being done in the best interests of a child. Here again, as it seems to me, the wise words of Holman J have a powerful resonance.
41. We can reason with someone in the mother's position. We can seek to persuade. But we should not seek to force or to coerce – and how else in this context could one sensibly characterise the threat of cross-examination or the threat of punishment for contempt. Of course, as Holman J pointed out (see Z County Council v R [2001] 1 FLR 365 at page 375), the matter is not to be determined on the say-so of a mother, but we have to face the realities. And the reality here, in the particular circumstances of this case is, I am quite satisfied, that we have to accept what the mother has told us. It would be wrong to push matters any further. I decline to do so.