England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		CaseNo. ZW7C00086 Royal Courts of Justice
		19th May 2017

MR JUSTICE HOLMAN:

1. This is a very exceptional application in very exceptional circumstances. The order which I have already indicated I will make is a very exceptional order indeed; and I wish to stress that I am very conscious of that, and of the fact that it requires extreme circumstances before such an order is made.
2. A lady presented herself at a hospital, describing symptoms and asking for help as to what was wrong with her. It turned out that, in fact, she was about twenty-nine weeks pregnant. The lady is a member of an ethnic minority community which I will not more precisely identify. To a social worker at the hospital shortly afterwards she stated that her boyfriend was not the father of her unborn child and that she had become pregnant from a one-night stand after clubbing and that she had never seen the man concerned again.
3. Coincidentally, as it seems, the baby was born very prematurely about a week later at about thirty or thirty-one weeks' gestation. On the date of the birth itself the mother signed a form, consenting to the baby being voluntarily placed with the applicant local authority pursuant to section 20 of the Children Act 1989 and to being placed for adoption. She said in the form that she did not want to have any contact with her baby. She said further on in the form that she did not have any contact details for the baby's father, who does not hold parental responsibility for the child.
4. A few weeks later the mother informed a social worker that the father of the baby was, in fact, her fiancé, whom she would be marrying a few weeks later. She did give a name as being the name of her fiancé. So, already differing accounts had emerged as to the circumstances in which the mother became pregnant and as to the identity or whereabouts of the father. The mother is reported as briefly wavering as to whether or not she wished the child to be adopted, but with that brief exception she has consistently expressed that she cannot look after the child herself and that she wishes the child to be adopted and herself to have no further involvement at all. Indeed, it transpired that this very premature baby had a heart defect which required surgery and there was some difficulty and delay in obtaining the mother's consent to that surgery, although ultimately she did consent and the surgery was successfully performed.
5. The mother has consistently said that the reason why she cannot have anything to do with her baby and does not want the father, whoever he may be, or any of his family or her own family even to know that she has given birth to a child is that she fears there would be grave consequences for her from her family and in the community within which she lives. She says at its lowest that she would be ostracised by her family and the community, and at its highest and at worst that she herself might be killed. Indeed, she sent an email to the social worker which says:

"I really love [the baby] and it really hurts me not to be [the baby's] mother because I can't look after [the baby]. If my family find out, they are going to kill me. I wish [the baby] could find the family that [the baby] deserves. That's why I want [the baby] to be adopted."

So, this mother has consistently repeated to social workers this very great fear that she might, at worst, be killed if even the fact of her pregnancy and, therefore, that she had sexual intercourse outside marriage was learned by anyone within her community.

6. The local authority commenced proceedings for a care and placement order. That has been investigated by a child's guardian allocated by CAFCASS. The guardian has not been able, because of these difficulties, to have a face-to-face meeting with the mother, but has spoken to her twice on the telephone. At paragraph 12 of her report dated 10^th May 2017 the guardian states as follows:

"[The mother] has made it clear to me that she does not with to have any contact with her child. She has also made it clear that she does not wish for any correspondence to be sent to her, to attend meetings or to be kept up to date on [the child's] progress. She also does not wish for any of her information to be made available to [the child] when [the child] grows up. [The mother] has also told me on the occasions I have spoken to her that [the child's] father and her family are not aware that she was pregnant or had the baby. She confirmed that if her family find out she is at risk of significant harm and even death as she is from a family where pre-marital sex is not tolerated, and children who are born outside wedlock and their mothers are treated differently."

7. It is, of course, axiomatic that, save in the most exceptional circumstances, the statute and rules and practice all require that before consideration is given to the adoption of a child, both genetic parents, if known, must be identified, located and made aware of the circumstances. Further, good practice requires that before a child is adopted or placed for adoption, consideration must be given to whether there could be a home for that child within the wider maternal or paternal families, But most rules have an exception, and a number of authorities which have been drawn to my attention, but which it is not necessary to cite, do make clear that in very rare and very exceptional circumstances it is permissible, and may be appropriate and justifiable, for the court to dispense even with those requirements of notice. I am satisfied on the facts and in the circumstances, as I have briefly summarised and described them, that this is, indeed, one of those very rare and exceptional cases. In the forefront, of course, must be consideration of the best interests of the child concerned. In the light of those facts and circumstances, it is really impossible to conceive how it could be of any benefit to this child to seek further reliably to identify the child's genetic father so that he can be given notice. It is equally impossible to conceive how it could be of any benefit to this child for the child's wider maternal or, if identified, wider paternal family to have notice. The child's own mother has made this desperately painful and dreadful decision that she can have nothing further to do with her child and has expressed most eloquently in that email both her continuing love for her child and her fear of the consequences if her family find out what has happened. That being the belief and assessment of the child's own mother, it is unrealistic to imagine that this child might, in fact, find a home within either her wider maternal or her paternal family.
8. It is, of course, also necessary to consider the rights of the father, whoever he may be, and of the wider maternal and paternal families, including their rights under Article 8 of the European Convention on Human Rights. There is, in fact, no psychological relationship at all between this child and any members of either the maternal or paternal family since none of them even know of the child's existence and none of them have ever met the child. What legal relationship may exist between the child and the father is speculative. It is true to say that if the genetic father is, in fact, the man who is now lawfully married under English civil law to the mother, then he would, by virtue of that marriage, have acquired parental responsibility for the child. But, as I have described, the identity of the father remains obscure and highly speculative and could not, frankly, be reliably established now without DNA testing.
9. The mother has consistently, with one brief exception, asked that her child should be adopted. As recently as yesterday she had a further meeting with a team manager of the local authority, who is present in court today. She signed a form of advance consent to adoption in the presence of, and witnessed by, that team manager. At the same time she was given by the team manager a letter, which I have seen, making plain to her that there was this hearing here today, and that she could attend if she wished; and making plain to her that if at any stage she changes her mind and decides that she does not want the child to be adopted she could and should contact the manager immediately. The mother has not attended today.
10. In these exceptional circumstances I am satisfied, first, that grounds exist for making a care order placing this child in the care of the local authority. Those grounds quite simply are that from the moment of the child's birth the child's mother has not wished to care for the child or made herself available to care for the child, and save under arrangements made by the local authority this child would not receive the care and nurture the child needs. So, I will make a care order placing the child in the care of the local authority. I am satisfied also that the conditions exist in this case for making a placement order and that the mother has given the required consent for that purpose in the form which she signed yesterday. So there will be a placement order in the prescribed standard form. There will be a freestanding order or declaration, in terms which counsel and the solicitor for the guardian will shortly draft, to the effect (without at this point dictating the language) that neither the local authority nor the guardian need take any further steps to seek to identify or locate the father of the child, nor to give any notice of these or any future adoption proceedings to any member of the maternal or putative paternal family. The order can include the wording that counsel drafted in her most helpful case summary for today, that:

"Upon the issue of proceedings for the adoption of [the child], the local authority are not required to identify or undertake any interview or assessment of the father or the extended family and the father need not be given notice of the adoption proceedings."

11. Counsel did go one further by her case summary and, indeed, by her cogent submissions today, by asking me to make an additional order or declaration that:

"Unless the mother has contacted the local authority to indicate that she would wish to be informed of any application to adopt [the child] prior to the issue of any application to adopt [the child], the mother shall not be served with notice of such proceedings."

In my view, that particular proposed order goes too far, at any rate at this stage. As counsel frankly accepted, it would be in conflict with the requirements of section 141 of the Adoption and Children Act 2002 and the rules made pursuant to that section. However exceptional it may be not to seek out and give notice to a putative father or wider family members, it is even more exceptional not to give notice of adoption proceedings to the mother who actually carried and gave birth to the child. The fact is that at the moment prospective adopters have not even been identified for this child; the child has not been placed with a view to adoption, and any actual adoption application must be many months away. There is no knowing whether or not, or in what circumstances, the mother might make further contact with the local authority and/or the guardian. In any event, recent history has shown that it is possible for both the local authority and the guardian to establish some line of communication with this mother without, it seems, imperilling the mother. As I have said, the guardian has spoken to her twice on the telephone and they have had email exchanges, and the team manager saw the mother at local authority offices as recently as yesterday pursuant to some arrangement or appointment. So I am not prepared to go so far as to make an order that at some time in the future the mother is to be denied all notice of actual adoption proceedings to adopt her child, but in other respects I am prepared to make, and do make, orders as requested.

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