L (Adoption: Identification of Possible Father)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,Sir Andrew McFarlane P,Lord Justice Peter Jackson |
| Judgment Date | 30 April 2020 |
| Neutral Citation | [2020] EWCA Civ 577 |
| Date | 30 April 2020 |
| Docket Number | Case No: B4/2020/0419 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 577
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
HHJ Marston, sitting as a Deputy High Court Judge
BS19P02142
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Andrew McFarlane
President of the Family Division
Lord Justice Peter Jackson
and
Lady Justice Nicola Davies
Case No: B4/2020/0419
Christopher Naish (instructed by Powells Law) for the Appellant
Mother Elizabeth Smith (instructed by North Somerset Council) for the Respondent Local
Authority Stuart Fuller (instructed by Henriques Griffiths Solicitors) for the Respondent Child by their Children's Guardian
Hearing date: 23 April 2020
Approved Judgment
In A, B and C (Adoption: Notification of Fathers And Relatives) [2020] EWCA Civ 41 this court considered the approach to be taken where a mother wants a baby to be placed for adoption without notice being given to the child's putative father. This appeal raises two related questions. First, to what extent does the same approach apply where there is uncertainty about the child's paternity? And second, what should the response of the court be to a proposal that paternity should be investigated by carrying out DNA testing on other children of the mother without reference to the possible father? I will call this ‘sibling testing’ although it begs the question of whether there is shared parentage.
The background is that the appellant mother, who is in her mid-20s, has three children. The older two are B, a boy aged nearly 3, and M, a girl aged 1 3/4. Their father is Mr C, with whom the mother cohabited between 2015 and 2017. He has parental responsibility for B, being named on his birth certificate, but does not have parental responsibility for M. He no longer lives with the mother but has contact with both children, as does his mother.
The mother's third child, K, is a baby girl now aged about 9 months. The pregnancy was concealed by the mother but in June 2019 it became known at a late stage to her family. She told them that Mr C was the father, and she said the same to a midwife at an appointment when she was 34 weeks pregnant. She asked for the child to be placed for adoption at birth. The midwife contacted the local authority and the mother informed social workers on 19 June that Mr C was the baby's father, but she was critical of his commitment and said he would not be able to care for the baby. She said that the older children had contact with him once every three weeks and that they stayed with his mother every Friday. She refused to consent to social services contacting him. The mother repeated this account at a meeting with the midwife and social worker two days before K was born.
K was born in July 2019. The mother left hospital without seeing her. When K was two days old the mother named her and signed a s.20 agreement to her being in foster care. She remained adamant that she would not give information about Mr C. She was told that the court might direct the local authority to identify the father. Eight days later, during the course of a further meeting, the mother told the social worker for the first time that Mr C was not K's father, but that she had been born as the result of what she described as a drunken one night stand with a man whom she could not identify. She said that she had lied previously because she was embarrassed at her actions and because she had not expected that anyone would want to contact Mr C.
Shortly after that, K moved to live with early permanence foster carers, where she remains. At the end of October 2019, the mother signed her consent to K's adoption.
On 16 December 2019, the local authority belatedly applied for a declaration that it need not take any further steps to identify or locate K's father or paternal family. At the same time it sought an order for DNA testing of Mr C. It was explained to us that the inconsistency between these applications was due to a breakdown in communication within the local authority, and that by the time the matter came before the court the local authority's position was that K's paternity needed to be clarified and that if Mr C was the father he should be consulted about her adoption.
The matter came before HHJ Marston on 19 December. He directed the mother to provide contact details for Mr C by 16 January 2020.
On 15 January 2020, the mother filed a witness statement expressing her fear at Mr C's response if told of K's birth. She described unpleasant behaviour by him towards her and her family, including at Christmas 2019. She said that he had a uncle who had been involved in serious violence and she feared what would happen if K's birth became known locally. She now said that she was certain Mr C was not the father.
At a further hearing on 20 January, with the support of K's Children's Guardian, the judge ordered the mother to provide Mr C's address and telephone number by 23 January, directed the local authority to contact him and inform him of K's birth, and gave a direction for DNA paternity testing involving K and Mr C. If Mr C was found to be the father, he was to be given notice of a hearing on 31 March.
The mother obtained advice on appeal. She then moved to the position that DNA testing of herself and her other children would be sufficient to establish that Mr C was not K's father. Accordingly an application was made for permission to appeal and for a stay. On 23 January, the judge granted a stay pending a telephone hearing on 5 February with a time estimate of 30 minutes.
The decision in A, B and C was handed down on 29 January.
In preparation for the hearing, full position statements were filed by the mother, the local authority and the Children's Guardian. On behalf of the mother, Mr Naish argued that the court should assume that Mr C may not be the father, that the mother had experienced significant emotional abuse from him and feared further such abuse, and that this would have a significant impact on her mental health. Informing Mr C would be an unnecessary breach of her Article 8 privacy rights when the desired outcome could be achieved by other means; the position may be different if Mr C was revealed to be the father. Obtaining samples from B and M would be unlikely to cause any significant distress. If the existing order was confirmed, it was not certain that Mr C would cooperate with testing. In response, Ms Smith for the local authority argued that it would not be ethical for the older children to be tested. It would not be done in their interests and there would be a risk that it would disturb their paternity. It would be done without the knowledge of Mr C, who has parental responsibility for B and Article 8 rights in respect of both children. It would not be as scientifically conclusive as adult testing. It was accepted that further investigation might not be appropriate where there was a very real risk of harm to K or the mother, but that was not the case here. It was in K's interests that there should be clarity about her parentage without further delay. The Guardian made similar submissions, laying emphasis on K's need to have information about her identity as she grows up.
On 5 February, the judge opened the hearing by informing the advocates that he only had ten minutes to deal with the matter that morning. Mr Naish, counsel for the mother, submitted that this was not likely to be adequate. The judge then heard brief submissions and said that he would consider the matter overnight. He said that he would either give judgment in favour of the mother's position or, if minded to rule against her, would list the matter for a hearing when he could hear full argument.
That is not in fact what happened. On 14 February the judge listed the matter for the handing down of judgment and on 17 February, he gave an extempore judgment, rejecting the suggestion of sibling testing and confirming his previous order. The mother was again ordered to provided contact details for Mr C, this time by 13 March. Failing that, the local authority was authorised to locate Mr C itself.
In his judgment, the judge recited the history and set out the mother's concerns about the father being a volatile man who would make things difficult for her and her family if he learned about K's birth. He said that he approached matters on the basis that there was some truth in that. In making the earlier orders, he had applied the same approach to a possible father as would apply to a presumed father and had not found there to be any exceptional reasons for not pursuing the question of paternity. He then addressed the advantages of the proposal put by the mother, reading from Mr Naish's written submissions. He summarised:
“Therefore the argument that is being put forward there is that I can, in effect, have my cake and eat it. I can have a genetic test which establishes the parenthood without having to go to Mr [C] and let the cat out of the bag in order to have such a test, if I can be colloquial.”
However, having made reference to each of the submissions of the Guardian and local authority, and reminded himself that paternity in this case was in issue, the judge reached his conclusion:
“I actually found this quite difficult to decide because I can see the advantages in not going to Mr [C] straightaway and possibly having an indicator of whether he is the father or not, which makes it unnecessary for him actually to be approached at all. However, on balance, I take seriously the potential...
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