Cases A, B and C (Adoption: Notification of Fathers and Relatives)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lady Justice Nicola Davies,Sir Andrew McFarlane P |
| Judgment Date | 29 January 2020 |
| Neutral Citation | [2020] EWCA Civ 41 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: B4/2019/2404 [A] B4/2019/2782 [C] |
| Date | 29 January 2020 |
[2020] EWCA Civ 41
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT
His Honour Judge Marston BS46/2019
His Honour Judge Willans ZW19C00250
Her Honour Judge Carr QC SE19C01107
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE FAMILY DIVISION
Lord Justice Peter Jackson
and
Lady Justice Nicola Davies
Case Nos: B4/2019/2404 [A]
B4/2019/2598 [B]
B4/2019/2782 [C]
Case A
James Cranfield (instructed by Battrick Clark Solicitors) for the Appellant Child by his Children's Guardian
Stuart Fuller for the Respondent Local Authority
Case B
Dorian Day & Barbara Hecht (instructed by Hecht Montgomery Solicitors) for the Appellant Mother
Tahmina Rahman & Amy Slingo for the Respondent Local Authority
Case C
Darren Howe QC & Charlotte Wilce (instructed by Foys Solicitors) for the Appellant Mother
Frances Heaton QC & Penelope Stanistreet-Keen for the Respondent Local Authority
Catherine Wood QC & Sara Anning (instructed by Howells LLP) for the Respondent Child by her Children's Guardian
Hearing date: 21 November 2019
Approved Judgment
Introduction
These three appeals concern babies whose mothers concealed their pregnancies and did not want the fathers and other relatives to know of the births. Should the local authorities and the court notify the fathers or relatives before plans for the children's future are made and put into effect? In each case the plan may involve adoption and in two cases that is what the mother wants.
Respect is due to the position of any mother who goes through pregnancy without family support and then chooses to relinquish the child at birth in the belief that it is for the best. Respect is also due to the position of the unsuspecting relatives. Some may have been a fleeting presence in the mother's life, but others may be more significant figures who have been kept in the dark and would be astonished to find that a baby (their child, sibling or grandchild) had been born and adopted without their knowledge, particularly if they were in a position to put themselves forward as carers. Most of all, the notification decision has life-changing implications for the baby. It may influence whether adoption happens at all and, even if it does, a sound adoption has its foundations in the integrity of the process by which it is achieved.
For social workers and courts these are not easy decisions. They have to be made without delay, on incomplete information, and in the knowledge of the profound consequences for everyone concerned. The law aims to distinguish those cases where a ‘fast-track’ adoption without notification of relatives is lawful from the majority of cases where the profound significance of the decision for the child demands that any realistic alternatives to adoption are given proper consideration. But in the end each case is unique and the outcome must depend on the facts.
The three appeals were heard together on 21 November 2019. At the end of the hearing, we informed the parties of our decisions and made orders so that planning for the children could continue. This judgment contains my reasons for agreeing with those decisions. It continues in these sections:
Section 1 A brief description of each case
Section 2 The law
Section 3 Analysis and Summary
Section 4 The three appeals.
Section 1: A brief description of each case
Case A
A is a boy born in February 2019. When he was born, his mother relinquished him to the care of her local authority and asked it to place him for adoption. A was placed with early permanence carers who would like to adopt him. On 22 May, the mother signed forms under sections 19 and 20 of the Adoption and Children Act 2002, consenting to his placement for adoption and giving advance consent to his adoption by his carers.
A's mother is aged 21. She is a student. Out of term time she lives with her mother and brother. On her account, A's father is a student elsewhere. They were in a relationship lasting 4 1/2 years and, though no longer together, remain friends. The mother did not tell her family, or the father or his family, about her pregnancy or A's birth. She has not named the father but the information she has given to the local authority probably enables him to be identified. Her own family is identifiable.
The mother gave these reasons for wanting A's birth to be kept secret and for him to be adopted:
• She has a history of depression for which she takes medication and did not feel physically or emotionally capable of caring for him.
• The father has also suffered with mental health issues.
• She had terminated two previous pregnancies, both by A's father, with his agreement.
• He would agree with the decision for A to be adopted as he would not want to be involved in the child's life.
• Her own mother would agree with the decision to adopt A. She too has mental health issues and her brother has learning difficulties. Other maternal family members are too old to care for A.
On 28 June the local authority belatedly issued an application under Part 19 of the Family Procedure Rules 2010 (FPR 2010) seeking a decision as to whether it should identify the putative father and members of the extended maternal and paternal families and offer to assess them as prospective carers. The application was determined by HHJ Marston on 16 August. He directed that the local authority was under no obligation to inform the father or wider family members of A's birth, or to seek to assess them as prospective carers. He declared that the lack of notice would not be regarded as a reason not to make an adoption order in due course. The Guardian applied for permission to appeal on 24 September and permission was granted on 16 October.
Case B
B is a girl born in July 2019. She has remained in the care of her mother, originally in a residential assessment unit but since the end of October in a mother and baby foster placement. The mother wants to care for B but the local authority has significant concerns.
The mother is aged 23. She came to the UK as a child. She has many siblings with ages ranging from their early 20s down to nursery age. She describes an abusive childhood. She suffered female genital mutilation as a young child and reports that her father regularly hit her, leading her to run away from home often. She has also reported being taken abroad at the age of 11 or 12 to be exorcised of evil spirits.
The mother has been known to the local authority since 2013, when concerns were raised about her chaotic behaviour and her use of alcohol and cannabis. She was placed under police protection at the age of 16. However, no safeguarding concerns were found in relation to any of her siblings.
The mother says that at the age of 16 or 17 she had an arranged marriage overseas and that she has a child from that marriage, now aged 4. She and her husband are divorced and have no contact. The child lives overseas with a maternal aunt. She has had no recent contact with that child.
The mother returned to the UK in 2018. She was homeless and staying with various friends. She began a relationship with a man she initially identified as B's father. She has since provided the local authority with the details of two other putative fathers and it is in the process of investigating paternity.
In the later months of the pregnancy medical staff recorded the mother attending hospital appointments seemingly under the influence of drugs or alcohol. She repeatedly missed antenatal appointments, including her induction date. Her ability to manage her finances or provide B with consistent food and shelter is in doubt, and there is said to be a risk of exploitation and domestic violence.
The mother said that she had not told anyone in her family about her pregnancy or B's birth. She had not spoken to her parents for over a year, and has limited contact with her sisters via social media. The position is therefore that B's father has not been identified, while the identity the maternal family is known.
The mother gave these reasons for wanting B's birth to be kept secret:
• If she cannot look after B herself, she would rather she was adopted than be placed in the care of her family, so that B should not experience the abuse she herself suffered.
• She is scared of her family's reaction if they found out that she had a child outside wedlock with someone of a difference race and cultural heritage.
• The family would therefore be unlikely to respond positively to being told of B's existence, and it would cause them needless upset and distress.
• An assessment of her family would be likely to be negative and little benefit would be gained.
• The father (the first man so named) did not want to play any part in the baby's life and even booked a termination for the mother. He was violent towards her while she was pregnant. He is involved with drugs and gangs and is currently serving a long prison sentence. She is scared of what he would do if she shared information about him with the local authority.
When B was born, the local authority appropriately issued care proceedings and the court made an interim care order and an order for residential assessment. The local authority wanted to contact the maternal grandparents to tell them of B's birth, with a view to assessing them should they put themselves forward as alternative carers. On 23 September it filed a statement to this effect. On 25 September the mother issued an application seeking a direction or injunction to prevent this. The position of the local authority was supported by B's Guardian, who contended that on balance all options needed to be properly considered.
The application was heard by HHJ Willans on 7 October. He refused the mother's application....
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