England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/07/2018

The Hon. Mr Justice Cobb:

1. This case concerns a baby boy, who I shall refer to as 'A'. He is 7 months old. He is currently accommodated under section 20 Children Act 1989 with the agreement of his mother (M). He is the fifth child born to M; of his four siblings, two were adopted some time ago, and two are in M's care. M wishes for A to be adopted. She further wishes the arrangements for his adoption to be made discreetly and quickly. M is adamant that she does not want the putative father (F), or A's extended family on either side to know of A's existence.
2. In the circumstances, the relevant Local Authority (currently looking after A) has brought before the court an application for a declaration that it would be permissible and indeed lawful for them to make arrangements for the adoption of A without seeking to notify the putative father, paternal or maternal extended family members, or assess them as carers for A. The procedure adopted here, invoked under Part 19 (rule 19.1(2)(b)) FPR 2010, is that contemplated by rule 14.21 of the FPR 2010, and was the procedure which I specifically advocated in these circumstances in Re RA (Baby relinquished for adoption) [2016] EWFC 25, [2017] 1 FLR 1610 at [50].
3. I initially heard submissions in this case on 4 July 2018. At that time, I was not satisfied that I had either sufficient or relevant evidence on which I could make the determination of this important question. I gave directions, and reconvened the hearing for 24 July. Following the receipt of additional evidence, a Guardian's report, and detailed written and oral submissions, I advised Counsel that I would grant the relief sought. Given the significance of this decision for A, and indeed for all members of his family, including those who know nothing about his existence, I considered it appropriate that I should give short written reasoned (and consequently a reserved) judgment.
4. I have consciously avoided descending into much factual detail in this judgment (except where unavoidable) in order to preserve the anonymity of A and M, and the confidentiality of the current situation.

Background

5. M had a troubled upbringing herself and was the focus of concern of social services as a child and young person. In her statement to the court she herself describes her childhood as "terrible", being "in and out of care", suffering the "emotional and physical abuse of my own mother and father". She says that "I decided any child of mine would never have a day of what I had to feel as a child …". This background history is not irrelevant to my evaluation of wider family members as potential carers for A.
6. M has a number of siblings – some of them adult (with children of their own) and some are still minors. The minor children remain in the care of M's father and step-mother, and have been for some years subject to child protection plans under the category of neglect, arising from mental ill-health of M's father/step-mother and alcohol abuse. Those child protection plans expired only very recently. All of A's maternal cousins (i.e. M's sibling's children) are themselves subject to child protection plans arising from social work concerns about mental ill-health, alcohol misuse and domestic violence of their parents. M's sister's partner is a friend or acquaintance of F.
7. I am advised that in adult life, M herself has unfortunately replicated some of her childhood experiences, and has experienced a number of abusive relationships; she suffers from anxiety and depression.
8. A is, as I earlier indicated, M's fifth child. She relinquished her first two children to adoption at birth; she did not disclose the identity of the fathers of those children. Her next two children remain in her care. She has struggled at times to care adequately for these children; social work concerns have focused on poor supervision and home conditions. One of the children has been adversely affected by the experience of domestic abuse (as that phrase is defined in PD12J para.3 FPR 2010) perpetrated by one of M's former partners; this has affected that child's emotional and behavioural development, which in turn has affected the child's ability to access mainstream education.
9. M and F were in a brief relationship (measured in weeks) in the spring of 2017, during which time A was conceived. They separated shortly after M fell pregnant, as M was distressed by F's abusive conduct towards her. F did not know (and it is believed does still not know) of the pregnancy. Although F moved swiftly into a new relationship, he continued to harass M in a number of ways – through social media, text and otherwise, and on one occasion threatened to kill her. M was understandably distressed by this and reported his harassment to the police earlier this year.
10. M was unaware that she was pregnant until very shortly before the delivery of A. She had taken no steps to prepare or plan for his future. A was born in hospital. M immediately agreed to his accommodation; she cited lack of practical resources to care for A. When this obstacle to A's care was explored and addressed by social services, M acknowledged that her far greater concern was the risk of abuse and harassment from F.
11. F is believed to have two children from a previous relationship with a former partner. They live in another part of the country, having fled abuse from F. By court order, he is permitted to have no contact with those children; the relative rarity of a 'no contact' order in the Family Court is an indicator of the seriousness of the risk posed by F to those children and/or their mother.
12. News of A's birth mysteriously leaked onto social media; through this medium, one of M's sisters became aware of A's birth. M swiftly explained to her sister that the information was erroneous; it is possible that the news spread to other members of the maternal family. I shall not reproduce in this judgment M's more detailed explanation to her sister, family, and ultimately (again through social media) to the wider community of the apparently false posting of the news of A's birth for fear that discussion of that explanation here would lead to identification of the individuals involved. It is sufficient for me to record that M's explanation appears (I am satisfied on the evidence put before the court) to have been accepted by her family and the community in which she lives.
13. F's father is deceased. F is said to have a difficult relationship with his mother. He has at least two brothers, one of who has a history of offending, and has recently been released from prison; F's brother's children are subject of a child protection plan as a result of domestic abuse within that household. F's other brother has no experience of caring for a child; he himself was the subject of a child protection plan when a child.

The mother's case

14. The mother's views are clear in this case. She maintains that she has made a difficult but child-focused decision in the interests of A that he should be adopted, and is equally adamant that neither F nor her family should be advised of A's existence.
15. M has submitted two documents for the Court. One is a general statement of her views, the other is described as "impact statement". I quote extracts from the first of those documents to give a flavour of their tone and content:

"My decision has been the hardest decision I have had to make… I ask, I beg, please do not bring [F] into me and those children's life. He is violent, he had no paternal instinct, he is not allowed to see his children by his first girlfriend and has continued to bully, threaten and harass many women with children as he sees no wrong. I left the relationship as I saw signs of violence. I did not want that… I saw something that scared me into calling an end to the relationship… I am a mother only and feel from the bottom of my heart this is the best thing for us all to have a future protected from [F]… I know [A] will be safe. I know he will be loved; he will have a lifetime journey made by me to look at how much he was and still is loved… I agree to let someone love him for me…".

Putative Father's history: assessment of risk

16. I have received a detailed report from the Domestic Abuse Co-ordinator of the police force for the area in which M and F live. The report reveals that F has a long-standing (15 year plus) history of abusive relationships and anti-social aggressive and violent behaviour. He has been the subject of repeated complaints to the police for stalking and harassing former female partners (including most recently earlier this year); at times, he has threatened to remove ("kidnap") his children from their mother. He has unstable mental health, and has repeatedly threatened self-harm and suicide. There are objectively reliable reports of F threatening and being abusive to Family Court staff and judiciary on occasions when he has had cause to attend court for hearings. Records of complaints about his abusive conduct are held by seven police forces nationally.
17. F has multiple convictions for assault (domestic abuse and otherwise) and harassment, is currently subject to a Family Law Act 1996 non-molestation order to protect one former partner, a 12-month community order for breach of that non-molestation order and for breach of two conditional discharges, and is separately subject to a five-year restraining order in relation to his conduct towards another partner. He awaits trial for offences of violence (section 18 OAPA 1861, not a domestic abuse incident), and separately for an offence of harassment. He has compromised his ability to work with safeguarding agencies by his aggressive conduct towards workers (particularly female). He has shown contempt for court orders, and is assessed as unwilling or unable to work with child protection agencies.
18. The Domestic Abuse Co-ordinator has assessed M and her two children as "high risk" from F – this assessment being based on the "identifiable risk indicators of serious harm and the potential event could happen at any time…".

Legal considerations

19. The law in this area is now well-rehearsed in a growing number of authorities, specifically Re JL & AO [2016] EWHC 440 (Fam), Re RA [2016] (see above), Re TJ [2017] EWFC 6, Re M & N (Twins: relinquished babies: Parentage) [2018] 1 FLR 293, and A Local Authority v the mother and another [2017] EWHC 1515 (Fam). I summarise the cardinal principles as they apply in this case as follows:

i) Each case is fact-sensitive (Re RA at [31]);

ii) The outcome contended for here is "exceptional" (A Local Authority v the mother at [1]/[7])

iii) The paramount consideration is the welfare of A; section 1(2) Adoption and Children Act 2002 ('ACA 2002')

iv) The court must have regard to the welfare checklist in section 1(4) ACA 2002;

v) It is a further requirement of statute (section 1(4)(f)(iii) ACA 2002) that the court has regard to the wishes and feelings of the child's relatives;

vi) Respect can and indeed must be afforded to the mother's wish for a confidential and discreet arrangement for the adoption of her child, although the mother's wishes must be critically examined and not just accepted at face value; overall the mother's wishes carry "significant weight" albeit that they are not decisive (Re JL and AO at [47], [48] and [50], and see also Re RA at [43(vi)]);

vii) Article 8 rights are engaged in this decision; however, in a case where a natural parent wishes to relinquish a baby, the degree of interference with the Article 8 rights is likely to be less than where the parent/child relationship is to be severed against the will of the parent (Re TJ at [26]];

viii) Adoption of any kind still represents a significant interference with family life, and can only be ordered by the court if it is necessary and proportionate (Re RA at [32]);

ix) A high level of justification is still required before the court can sanction adoption as the outcome, and a thorough 'analysis' of the options is necessary (Re JL & AO at [32]); 'analysis' is different from 'assessment' – a sufficient 'analysis' may be performed even though the natural family are unaware of the process (Re RA at [34]). As I said in Re RA at [38]:

"in order to weigh up all of the relevant considerations in determining a relinquished baby case it may be possible (it may in some cases be necessary) and/or proportionate to perform the analysis without full assessment of third parties, or even their knowledge of the existence of the baby. The court will consider the available information in relation to the individual child and make a judgment about whether, and if so what, further information is needed".

. Discussion and conclusion

20. The decision required in this case at this juncture is significant for all concerned; for A, for M, and for members of A's wider natural family.
21. The Guardian describes the case as "complex and challenging"; there are indeed powerful competing factors weighing in the decision on both sides. Those factors are reflected in very large measure by the statutory checklist in section 1(4) ACA 2002 and by ECHR Convention rights which are indisputably engaged here.
22. Weighty among the statutory factors engaged is the likely effect on A (throughout his life) of ceasing to be a member of the original family and becoming an adopted person (section 1(4)(c) ACA 2002), and indeed the denial of A's family of the chance to claim him. But in this context, I have to have regard to what in reality and on these facts is likely to be forfeited by A's lost membership of his natural family. It is striking that A's wider family members have a particularly poor record of parenting; in all, or almost all, family contexts, child protection safeguarding agencies have been involved historically and currently. The reality is that all relevant members of A's family have struggled to provide appropriate parenting of their children without the input of social services, and the legacy is that members of A's family (including M herself) have experienced significant harm as a consequence of their upbringing.
23. The social worker and Guardian have analysed the family histories carefully, and I am satisfied, from their evidence, that there is no realistic prospect of A being placed safely and securely in the care of any member of the maternal or paternal family (section 1(4)(f)(ii) ACA 2002).
24. Indeed there is a further, discrete, threat to A's well-being and development were he to be placed within the family. The evidence disclosed before me reveals a very real risk of harm to A (section 1(4)(e) ACA 2002) from domestic abuse by F: "domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour": PD12J [4]. There is an equivalent risk of harm to M from F (and significant interference with her and her children's Article 8 rights) if F were advised of A's existence.
25. I am satisfied that family placement of A with any member of his family would be highly vulnerable to the unguarded, impulsive, and highly destructive influence and interference from F. The picture is further complicated by the fact that if F were advised of A's existence, M has from time to time indicated that she may remove him from accommodation and seek to care for him herself. This would clearly expose A to the risk of harm from F. If, on the other hand, M decided to pursue her plan for A's adoption (which at other times she has indicated), I am satisfied that this would expose M herself and her two children to a grave and immediate risk of serious abuse and harassment. Indeed, it seems altogether likely that, on the evidence of the police's Domestic Abuse Co-ordinator, were F to be informed of A's existence, M and her two children (and A if he were with them) would be forced to leave their home and the community in which they live (and schools which the children attend) to create a life in another part of the country. This disruption would cut significantly across their Article 8 rights to respect for their private and family life, and it is (in any event) far from assured that this action would secure for them the safety and protection from abuse which they require and deserve. In discussion with the social worker, M has shown perhaps understandable ambivalence about fleeing her home and community; her vacillation on this point adds yet a further layer of concern for her and her children's safety.
26. These factors, taken individually and certainly together, make a powerful case for withholding from F and the extended family information about A's existence and the plans for his adoption. Once considered alongside the fact that M has articulated a very clear wish that A be adopted (a factor to which I can and indeed should attach significant weight), the answer to this application becomes yet clearer.
27. I have been assisted by the swift and thorough way in which the social worker has responded to my call for further information over the last three weeks. I imposed a tight time-frame for the collection of additional data mindful of my obligation to avoid delay in decision-making for A (section 1(3) ACA 2002); each day counts in his short life.
28. Having weighed all the matters which I have rehearsed above, I am amply satisfied that on these facts the Local Authority has made good its case for the declaration sought.
29. That is my judgment.