Re H (Care and Adoption: Assessment of wider family)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 14 February 2019 |
| Neutral Citation | [2019] EWFC 10 |
| Docket Number | Case No: LS18C00597 |
| Court | Family Court |
| Date | 14 February 2019 |
[2019] EWFC 10
IN THE FAMILY COURT
Royal Courts of Justice
Strand
London WC2A 2LL
THE HONOURABLE Mr Justice Cobb
Case No: LS18C00597
James Hasson (instructed by JWP Solicitors) for the Local Authority
Rachael Hughes (instructed by GWB Harthills) for the Mother
Aelred Hookway (instructed by Grange Appleyard) for the Father
Jill McCurdy (solicitor advocate from Ramsdens Solicitors) for the Child (H)
Hearing dates: 4 February 2019 (Sheffield)
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Cobb
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
In public law proceedings under Part IV of the Children Act 1989 (‘ CA 1989’), social work assessments are commonly undertaken of members of the subject child's wider family or friends who are proposed as potential carers in the event that the child cannot be safely placed with parents. The issue which arises in this case is whether a local authority is required, by statute or otherwise, to notify wider family members of the existence of the subject child, and/or assess them, when they are not proposed by parents as potential alternative carers, and where the parents (or either of them) specifically do not wish the wider family to be involved.
The application concerns a baby boy, now aged 5 months, H. He is currently in foster care, and subject to an interim care order, public law proceedings having been launched in respect of him as soon as he was born. He is the third child born to these parents. He has an older sister, F, and an older brother, G. He has multiple maternal half-siblings, and two paternal half-siblings. Both F and G have been placed for adoption, as indeed have a number of his maternal half-siblings.
These proceedings are being case-managed to a contested final hearing. The parents are being assessed as to their suitability to care for H; they wish to care for him together as a couple, but the indications are not currently altogether positive – both parents have a long history of substance misuse and alcohol abuse, and there is a history of alleged domestic violence, including an alleged incident in the last few days. An application for a placement order ( Adoption and Children Act 2002: ‘ ACA 2002’) is contemplated, but not yet issued.
The Agency Decision Maker of the local authority (a senior social worker with responsibility for making decisions on whether a child should be placed for adoption, the suitability of prospective adopters and with whom a child should be placed for adoption) wishes to know whether, in the event that the parents are assessed as unsuitable to care for H, there are other family members who may be suitable, and may wish, to care for H.
The wider maternal family apparently know of the existence of F, G and H, but do not wish to be considered as carers for H. The paternal family do not apparently know of the existence of H, nor of his older siblings F and G. The father has made it clear that he is opposed to the local authority notifying his family of the existence of H; he has confirmed that he would rather that H be placed for adoption than for his parents know of the existence of H.
The local authority seeks guidance from the court on whether it should take steps to track down the paternal family, and notify them of the existence of H (and necessarily of F and G), with a view (potentially at least) to assessing them. On 10 January 2019 it issued an application under Part 19 Family Procedure Rules 2010 (‘ FPR 2010’) (as contemplated in these circumstances in Re RA (Baby relinquished for adoption) [2016] EWFC 25, [2017] 1 FLR 1610 at [50]) seeking the following relief:
“… Notwithstanding the father's objection to the local authority taking steps to locate his family, and contacting them, the local authority seeks confirmation from the Court that it can and should notify the father's wider family of the existence of H, and, as appropriate, elicit their views as to plans for H's future, and if relevant assess them as carers for H.” (The wording is not as it appears in the application, but was refined at the hearing).
At an earlier hearing, I considered this application and gave case management directions; specifically, I directed statements from the parents as I wished to know directly from them on this issue. I required them to attend the hearing; the father filed a statement, but the mother did not. Neither parent attended the hearing.
The parties' cases
The local authority wishes to contact the paternal family, specifically the paternal grandparents, to notify them of the existence of H; it particularly wishes to establish whether the wider family may be in a position to care for H. It submits that the circumstances which obtain here are distinguishable from the cases where a court permits a parent and adoption agency to make discreet and confidential arrangements for the adoption of a ‘relinquished’ child.
The Children's Guardian supports the local authority, arguing that “the court should be slow to ignore the potential for investigation into a possible family placement given the extreme and draconian plan for adoption”. In considering this submission I bear in mind that the Children's Guardian has a wide-ranging duty in public law proceedings such as these – see section 41 of the CA 1989 – which includes a “duty to safeguard the interests of the child in the manner prescribed by such rules” ( section 41(2)(b)). Under the Family Proceedings Rules 2010, rule 16.20, the Guardian has “the duty of safeguarding the interests of the child”, and this is buttressed by PD16A, Pts 3 and 4 which contains the following responsibilities:
“6.1 The children's guardian must make such investigations as are necessary to carry out the children's guardian's duties and must, in particular –
(a) contact or seek to interview such persons as the children's guardian thinks appropriate or as the court directs; and
(b) obtain such professional assistance as is available which the children's guardian thinks appropriate or which the court directs be obtained.
6.6 The children's guardian must advise the court on the following matters –
… (e) the options available to it in respect of the child and the suitability of each such option including what order should be made in determining the application; …” (emphasis by underlining added).
Pursuant to my direction, the father filed a statement in which he says this:
“I do not believe that anyone in my family would be able to offer [H] a home … [having described his parents' health and circumstances he adds] I do not want to burden them with the knowledge that their grandson is subject to court proceedings and might be adopted when there is nothing they can do about it.”
He refers, then, to a half-brother and sister with whom he has little current contact, and who would, inferentially, be unsuited to care for H. By contrast to this account, the local authority social work assessment for the relevant Adoption Panel records the following:
“[the father] talks of a strong family unit and he continues to visit his family on a weekly basis, however [the father] was reserved in disclosing his parents views of his lifestyle as it appears that his parents are not aware of the births of [G] or [H] and he is adamant that he does not want them to know and would rather his children be adopted then them know…
…[The father] recalls a happy childhood and he said there was no domestic abuse, no mental health, no illicit drugs or alcohol. He recalls going on family holidays… his father worked… his mother stayed at home to care for the children. He can remember his mother taking them to school and reading with them and being supportive with their homework. [The father] explains that his family is a traditional, strong family unit which continues to date. [The father] continues to visit his parents”
Until recently the local authority had no means of tracing the paternal family, and there would be no obvious power for me to compel the father to reveal their identity or whereabouts. However, in the last few days, the local authority has obtained the father's birth certificate, which contains his parents' names. It is acknowledged that this information should materially assist in locating the father's parents.
During the adoption processes concerning F and G, the father was not formally identified as the babies' parent, and the issue currently before the court did not arise.
During these proceedings concerning H, the relevant local authority has contacted the maternal family
“… but unfortunately, none of them have wished to put themselves forward for [F], [G], or [H] and were in agreement of the local authorities' plan of adoption. Additionally, they did not want to be part of any life story work”.
Counsel for the father and mother concede that were I to refuse the local authority's application, and grant the father the relief he seeks, this would materially extend the relatively small class of exceptional cases contemplated by the ‘relinquished baby’ caselaw (see below at [33]). Mr Hookway, for the father, indeed asserts in his position statement: “clearly this is not a relinquished baby...
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