The High Court have just considered this issue in A and B v P Council 2014
This is a step-parent adoption, i.e the child’s step-father seeking to become the child’s legal father, which would have the effect of severing the birth father’s legal relationship with the child. There are a raft of nationalities involved here, and the birth father’s name is on the birth certificate. The birth was recorded in Thailand, and thus it was not clear whether this gave him “parental responsibility” [The High Court had initially decided to proceed on the assumption that he DID have PR]
The mother and step-father say that they do not have an address for the father, and he has had no contact with the child, who is now 9, for many years – in fact since just after his birth.
The issue for the Court was whether the adoption could go ahead without father being served with notice.
The Relevant Legal Framework
- There is a measure of agreement between the parties, the Local Authority and Cafcass Legal regarding the relevant legal framework for this application.
- A parent with parental responsibility is an automatic party to the proceedings under rule 14.1 Family Procedure Rules 2010 (FPR 2010).
- A parent who does not have parental responsibility may be given notice of the proceedings and that person may apply to the court for party status (rule 14.3 FPR 2010).
- It is agreed that if the father did hold parental responsibility under Thai law, that is not recognised in England and Wales for the purposes of English adoption law.
- This is due to the operation of Article 4 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children (Concluded 19 October 1996) (hereafter referred to as the 1996 Convention).
- Under Article 16 of the 1996 Convention parental responsibility which exists under the law of the State of the child’s habitual residence subsists after a change of that habitual residence to another State. This is even if the State of habitual residence is a non-contracting State (Article 20).
- Under Article 17 the exercise of parental responsibility is governed by the law of the State of the child’s habitual residence and if the child’s habitual residence changes, it is governed by the law of the State of the new habitual residence.
- However, when considering the scope of the 1996 Convention, Article 4 makes clear it does not apply to the establishment or contesting of a parent-child relationship, decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption or the name or forenames of the child. The combination of the Explanatory Report on the 1996 Hague Convention by Paul Lagarde (in particular paragraph 28), the revised draft practical handbook on the 1996 Convention (May 2011) (in particular paragraph 3.37) and the Practice Guide on the 1996 Convention published by the Ministry of Justice (February 2013) (in particular page 6) make clear Article 4 is to be interpreted widely and includes all aspects of the adoption process, including the placement of children for adoption.
- It is therefore agreed by the parties that even if the father did hold parental responsibility pursuant to the operation of Article 16, by operation of Article 4 he would not be treated as a parent within the context of s 52(6) ACA 2002. Within that context the father is not treated as a father who holds parental responsibility unless he has acquired it under sections 2 or 4 Children Act 1989 (CA 1989), which this father did not.
- The consequence is that the father in this case does not hold parental responsibility for M within the meaning of the ACA 2002, his consent to the adoption under s 47(2) ACA 2002 is not necessary and would not be required to be dispensed with under s 52 ACA 2002. He is therefore not an automatic party to the adoption application under rule 14.1 FPR 2010.
- However, notwithstanding that an unmarried father with ‘foreign parental responsibility’ is not a father with parental responsibility for the purposes of English adoption law the provisions of rule 14.4 FPR 2010 provide as follows:
Notice of proceedings to person with foreign parental responsibility
(1) This rule applies where a child is subject to proceedings to which this Part applies
(a) a parent of the child holds or is believed to hold parental responsibility for the child under the law of another State which subsists in accordance with Article 16 of the 1996 Hague Convention following the child becoming habitually resident in a territorial unit of the United Kingdom; and
(b) that parent is not otherwise required to be joined as a respondent under rule 14.3.
(2) The applicant shall give notice of the proceedings to any parent to whom the applicant believes paragraph (1) applies in any case in which a person who was a parent with parental responsibility under the 1989 Act would be a respondent to the proceedings in accordance with rule 14.3.
(3) The applicant and every respondent to the proceedings shall provide such details as they possess as to the identity and whereabouts of any parent they believe to hold parental responsibility for the child in accordance with paragraph (1) to the court officer, upon making, or responding to the application as appropriate.
(4) Where the existence of such a parent only becomes apparent to a party at a later date during the proceedings, that party must notify the court officer of those details at the earliest opportunity.
(5) Where a parent to whom paragraph (1) applies receives notice of proceedings, that parent may apply to the court to be joined as a party using the Part 18 procedure.
With that in mind the Court went on to consider the issue of father’s PR
- I am satisfied the mother and step-father do not believe the father has parental responsibility under Thai law and there is a rational foundation for their belief for the reasons set out in the previous paragraphs. That belief is derived from a number of different sources and there is no suggestion that the mother and step father have done other than comply with all the relevant authorities both in Thailand and here.
- In the light of that I do not consider the mandatory requirement for notice of these proceedings to the father applies as, in accordance the provisions of rule 14.4 (1) and (2) the applicant (in this case the step-father) does not believe the father holds ‘parental responsibility for the child under the law of another State which subsists in accordance with Article 16 of the 1996 Hague Convention following the child becoming habitually resident in a territorial unit of the United Kingdom’.
- Even if the father does not hold foreign parental responsibility the court is still required to consider whether the father should be given notice of the application.
The High Court then looked at the case law about giving fathers notice of adoption proceedings (or not giving them notice, as the case may be). Most of these arise from ‘relinquished’ babies, where the mother seeks to give the child up for adoption but does not want the father to be informed (often there’s a short-lived relationship, or an abusive one, or the pregnancy has been concealed from the mother’s own family). There are some gray areas at present as to whether these are thus ‘consensual’ adoptions (and Re B, B-S don’t apply) or whether because father hasn’t consented they are in reality ‘non-consensual adoptions” to which Re B and Re B-S (the Court having to be satisfied that ‘nothing else will do’) apply.
[The same gray area potentially arises here, since the father was not consenting, but the mother was. The High Court don’t actually resolve that gray area – not sure whether that lets the conclusion be drawn that the High Court, given they don’t use ‘nothing else will do’ wording means that they consider a case of THIS kind to be consensual adoption. It may not be safe to draw that conclusion, since the last paragraph indicates that having dealt with the issue of service on father not being required, the Court would go on to consider the MERITS of the application on another occasion. Frankly, if “nothing else will do” applies to step-parent adoptions, it is hard to see how they would ever be granted. The child is in the placement, there are other legal routes to secure parental responsibility for the step-father, how could one ever consider that ‘nothing else than step-parent adoption would do’?)
- it has long been recognised that in applications for adoption the position of the natural father who did not have parental responsibility had to be considered and a decision taken in each case whether, or not, to give him notice of the proceedings. Whether to do so should be considered on the facts of each case.
- Re H (a child)(adoption: disclosure), Re G(a child)(adoption: disclosure)  1 FCR 726 set out that as a matter of general practice, directions should be given to inform natural fathers of such proceedings unless for good reasons the court decided it was not appropriate to do so. The issue of whether or not the father had a right to respect for family life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 as set out in Part 1 of Schedule 1 of the Human Rights Act 1998 was important to establish. If he did then generally Article 6(1) of the Convention is engaged and there would need to be strong countervailing factors to outweigh the father’s Article 6 rights in favour of the mother’s right to private family life. Such countervailing factors may include serious domestic violence that placed the mother at serious physical risk. As the then President, Dame Elizabeth Butler Sloss, observed in Re H (ibid) at para 48 ‘There may well be other situations in which a father should not be informed of the proceedings and my examples are, of course, not exhaustive’. If the father does not have any Article 8 rights the provisions of Article 6 are not engaged and notice does not need to be given, unless there is a real possibility that he might make an application under the CA 1989 which the court ought to entertain.
- In the cases where the court is being asked to exercise its power to grant exception from the rules which require a father to be given notice the previous cases establish this power should only to be exercised in ‘highly exceptional circumstances’ (per Thorpe LJ Re AB (Care Proceedings: Service on Husband Ignorant of Child’s Existence)  EWCA Civ 1842 para 3) or a ‘high degree of exceptionality is required’ (per Longmore LJ M v F  EWCA Civ 273 para 25). This will depend on the court’s assessment of the risk of future harm. In M v F (ibid) para 3 Thorpe LJ stated ‘When evaluating the risk of future harm there can be no minimum requirement. The court’s first task is to identify the nature and extent of the harm in contemplation. The greater the harm the smaller need be the risk. Obviously, the risk of death may be very small, whereas the risk of turbulence in family relationships would need to be much higher.’ In assessing the likelihood of harm arising from notice of the proceedings the test to be applied is the test in Re H (minors)(Sexual Abuse: Standard of Proof)  AC 563 namely ‘in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case’.
- There may, in reality, be little difference in the principles between these two strands of cases as a critical starting point is to establish whether or not the father has any right to family life pursuant to Article 8. It is agreed this is a question of fact and there are a number of matters for the court to consider. It has been said that the threshold for establishing family life has been set at a fairly modest level.
Applying the broad principles to the case, the Court heard representations about allegations of previous violence from the birth father to the mother
- I have very carefully considered the important competing considerations in this case and I am very mindful of the general practice to inform natural fathers of applications such as this which fundamentally affect the status of a child. I have considered this aspect of the case in the context of rule 14.4 and, for the purposes of this analysis assumed this father does have foreign parental responsibility. So there is a mandatory requirement under the rules for him to be given notice of the proceedings.
- I am considering this issue in the context of my finding that the father, for the reasons I have already explained, does not have any existing Article 8 rights. He is someone who has not sought to maintain his ties with M.
- The wish of the mother and step-father for confidentiality is, in my judgment, an exceptional circumstance, on the facts of this case, justifying the court exercising its power to grant exception from the rules requiring the father to be given notice. The evidence based fears expressed by the mother regarding the father’s behaviour is founded on the father’s previous violent behaviour to her, M and her wider family which is supported by corroborative evidence. In my judgment there is a real possibility that if the father is informed of this application he could physically harm or threaten the mother or the wider maternal family. It is a possibility that cannot be ignored having regard to the extent of the father’s alleged violent behaviour towards the mother and her wider family in the past, in the context where the maternal family remain in the same home which is known to the father. On the particular facts of this case the balance, in my judgment, comes down in favour of the father not being notified about these proceedings, even if he could be located.