FAMILY DIVISION
The Child: D (a boy born 10/2024)
Strand, London, WC2A 2LL |
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B e f o r e :
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A LOCAL AUTHORITY |
Applicant |
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- and – |
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M |
1st Respondent |
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- and - |
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F |
2nd Respondent |
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- and – |
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The Child (by their children's guardian) |
3rd Respondent |
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The 1st and 2nd Respondents appeared in person
Ms O'Connor (solicitor of David Wilson solicitors) for the 3rd Respondent
Hearing dates: 03 April 2025
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Crown Copyright ©
Cusworth J :
3. The parents have expressed their strong sense of responsibility to do what is right for D. M did not discover her unexpected pregnancy until very late, such that a termination was no longer possible for her. They explain that having children was 'not part of their plan as a couple', and are clear that they have made the right decision for D to place him for adoption. They speak very positively of his foster parents, whom they have met, and say that they are certain that adoption by his current carers offers D the best opportunity for a successful life. They say in their first statement that they had never considered involving their wider family, because they 'know better than anyone that none of them would be suitable for many reasons…'. They continue by asking that their rights as parents are respected, and stating that they have a right to a private life and that they feel that 'attempting to inform our wider family would be a huge breach of that right.'
8. The guardian continues that: 'The concerns raised by F about his parents may not necessarily pose immediate safeguarding concerns to D and could be further assessed/explored by the Local Authority when completing further assessments and it could be argued that adequate safeguarding measures could be put in place to ensure D would be safe. As D's Children's Guardian, I am very concerned about how life would look for D if he was to be cared for by his paternal grandparents. I refer mainly to the paternal grandparents as they do seem to be the most realistic option from the extended family.' Later she adds: 'In addition, the fact that D's parents have not only felt unable to share the news about their baby with the paternal grandparents but have actively opposed the prospect of them caring for D, would likely further negatively impact the family dynamics… F's children spend regular time with their paternal grandparents and D will also know that their father sees his older siblings and that neither his mother nor his father want to see him. For D, this is likely to have a significant detrimental emotional impact, and it could also impact negatively on F's relationship with his own children.' With respect to her, these comments seem to address the question of whether the paternal grandparents should be successful if they were to make an application to become D's carers, rather than whether they should receive any notification of his existence and position.
'while child welfare, prompt decision-making and a comprehensive review of every relevant factor, including those mentioned in the checklists, are all central to the notification decision, the decision is not one that is formally governed by the provisions of s.1 of the CA 1989 or of the ACA 2002 and the welfare of the child is not the paramount consideration of the local authority and the court in this context.'
"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)…
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"."
"45. … none of the provisions of statute, regulations or rules to which I have referred, impose any absolute duty on either the local authority or the Children's Guardian, or indeed the court, to inform or consult members of the extended family about the existence of a child or the plans for the child's adoption in circumstances such as arise here. However, the ethos of the CA 1989 is plainly supportive of wider family involvement in the child's life, save where that outcome is not consistent with their welfare." …
49. In exercising that broad discretion, I would suggest that the following be borne in mind… There will be further cases where the mental health or well-being of the parent or parents may be imperilled if disclosure were to be ordered, and this may weigh heavy in the evaluation. But in exercising judgment – whether that be by the local authority, adoption agency or court – I am clear that the wider family should not simply be ignored on the say-so of a parent. Generally, the ability and/or willingness of the wider family to provide the child with a secure environment in which to grow ( section 1(4)(f)(ii) ACA 2002 ) should be carefully scrutinised, and the option itself should be "fully explored" (see [28]). The approach taken by Sumner J in the Birmingham case more than a decade ago, to the effect that "cogent and compelling" grounds should exist before the court could endorse an arrangement for the despatch of public law proceedings while the wider family remained ignorant of the existence of the child (see [29] above), remains, in my judgment, sound. This approach is in keeping with the key principles of the CA 1989 and the ACA 2002 that children are generally best looked after within their own family, save where that outcome is not consistent with their welfare, and that a care order on a plan for adoption is appropriate only where no other course is possible in the child's interests (see Re B (A child) and Re B-S )."
'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.
a. Parental responsibility. In this case, both of the parents have parental responsibility, and resist notification. There is therefore no reason to support the local authority's application of the basis that anyone who would otherwise have the opportunity to give or withhold consent to adoption is being prevented from so doing.
b. Article 8 rights. Here, although not potential carers for D, J and T are his half-brothers, who spend 50% of their time living with their father. By the decision not to consider kinship care, these close relatives of D are being deprived substantially of a potential family life with him, even if, as I understand, the foster carers are open to some level of ongoing contact with the birth family. In circumstances where the parents have currently got no clear plan to even inform the boys of D's existence, it is clear that for the present at least they are not at the point of being willing to foster that relationship going forward. Indeed F's initial oral evidence was to the effect that he had not intended to tell them at all for the next ten years or so. Although I note that D's carers have been provided with a photograph of J and T, there has been no thought given to how any future relationship between the three might be pursued.
c. Further, whilst it may be the case that none of the parent's siblings would want to consider offering themselves as a carer for D, as the parents tell me, there is no evidence as to why that should be the case. It may be that both of F's sisters have decided they do not wish to have a family, as he says, but in circumstances where I am not satisfied that relations within his family are as broken down as he has told me, at least from their perspective, I cannot be confident that that is the case. It is noticeable that the absolute estrangement on which he relies has come about only since these proceedings were initiated, and seemingly at the instance of F. I bear in mind that if in fact the evidence that he has given about his belief in sisters' unwillingness to offer assistance proved unsubstantiated, then the right to a fair hearing for F's siblings would have been engaged, and strong reasons would be required before the withholding of notification to them could be justified. I only have his bare assertion to rely on. The same situation applies with M's sister and father.
d. The substance of the relationships. As Peter Jackson LJ put it in the alternative, 'with what degree of objective justification might (the relative) complain if they later discovered they had been excluded from the decision?' Again here I am dependent upon the evidence of the parents to assess the relationships with the wider family; and whilst I do accept that in circumstances where the parents wish for there to be no notification of the families at all, that might be said of itself to be evidence of a strain, I do not feel that I have been presented with as full and comprehensive explanation for any difficulties as I might have been. In particular, the lack of thought apparently given to the future engagement with J and T hints at a potentially much more complicated family dynamic which the parents have chosen not to reveal. If 'those who are necessarily silent' are to be 'given a notional voice so as to identify the possible strengths and weaknesses of any argument that they might make', then the circumstances for D have to be looked at from as neutral a point of view as possible, taking into account what is known, rather than what is asserted by the parents who are seeking to prevent notification.
e. What is certain is that F has parents in their mid-50s, and two childless adult sisters. He has two children by a former relationship (J and T) who spend half of their time with him and the rest with their mother. Before Christmas, both those children saw their paternal grandparents regularly, both when they were with their father, and also when they were with their mother. That suggests fairly close familial relationships, without more. Then, unexpectedly, M discovered last year that she was in the late stages of pregnancy, too late for a termination, and she and F made what must have been the extremely hard decision to give their baby up for adoption. In taking that decision, they may well have considered how that news might be received in F's family, and indeed how they would feel if D, although their child by birth, were being brought up elsewhere in the extended family. That could be a difficult thing for either F or M to contemplate, although they have not chosen to cite their own feelings as amongst their reasons to resist the local authority's application. It may also be complicated for D, especially when compared with what sounds to be an excellent early permanence placement. I must decide how that weighs against what would otherwise appear to be the availability of a significant extended family, not in terms of eventual outcome for D, but in terms of notification of the fact that he exists and that there is a question about his best interests.
f. The likelihood of a family placement being a realistic alternative to adoption. As above, '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'. As explained the evidence here is incomplete and partial, and the fact of D's settled place with by all accounts excellent early permanence foster carers means that any eventual alternative placement may be seen as unlikely – but not necessarily unrealistic. It cannot be said with confidence that 'a family placement is unlikely to be worth investigating' or that 'notification may cause significant harm to those notified', even if difficult discussions might follow within the family, not least because they have not up until now been made aware of D's birth. In those circumstances, this factor would appear to point in favour of notification, notwithstanding that D's current placement will remain his very likely eventual destination.
g. The physical, psychological or social impact on the parents of notification being given. For the reasons given at (e) above, I acknowledge that there may be underlying concerns that the parents have, that they have not felt able to share fully about their reaction to any family involvement. However, I must bear in mind, given the fact of J and T's close relationship to D, that the fact of his birth is unlikely to be kept a secret indefinitely. Familial relationships are going to have to re-adjust around the fact of his existence, however that information is introduced. In those circumstances, notification may bring forward the need for frank conversations to be had, but its impact over and above the fact that the news will eventually be shared within the two families must be limited. As Peter Jackson LJ made clear, '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'.
h. Cultural and religious factors. I am not told of any that may be relevant in this case.
i. The availability and durability of the confidential information. Under this head, Peter Jackson LJ explained that, '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'. As I have made clear above, it is at least highly likely that the information about Ds birth and adoption will soon become known within the extended family. As the guardian agreed, J and T should be told of him sooner rather than later. In those circumstances, enduring confidentiality is simply not an option here. All of this points firmly toward notification, once the parents have had the opportunity to manage the passing of the information to the boys, and so also to the adults around them.
j. The impact of delay. Peter Jackson LJ confirmed that 'In most cases, the importance of the issues means that the delay cannot be a predominant factor.' This is especially so when the early permanence carers have confirmed that they will continue to care for D in the event that the conclusion of the adoption proceedings are held up by the notification process. D's excellent current placement is not therefore under threat from the process. I do accept that notification will inevitably mean that the time when D's permanent placement can be confirmed will be delayed, but that should have any serious impact on him given his young age and the continuity of care that he will receive. If the evidence of the parents as to their families' likely lack of interest in offering themselves as potential carers proves to be accurate, then any delay will in any event be limited.
k. Any other relevant matters. All the matters canvassed before me, and which additionally appear to be of relevance, have been fully canvassed above.