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Striking ineptitude from an organisation.

 

This is a HFEA case, along the same lines as the one decided by the President discussed here:-

 

https://suesspiciousminds.com/2015/09/11/ivf-and-declarations-of-paternity-major-cock-ups-in-ivf-clinics/

 

I.e that because a clinic involved in artificial insemination (IVF) failed to use proper consent forms and keep proper records, the parents ended up in Court to resolve who had parental responsibility.  You may recall from that case, that the Human Fertilisation and Embryology Authority had carried out an audit and found that about HALF of the clinics who do this work were using the wrong forms and losing records.  There was always going to be more litigation about this cock-up.

This individual case, however, did not (as the President’s 8 cases did) involve parents who were all on the same page about their intentions and who should have parental responsibility but parents who were already litigating issues about the children. So this was an added complication to already difficult proceedings.

 

In this particular case, Pauffley J was rightly very critical of the clinic involved, Herts and Essex Fertility Centre.

 

  • In the course of my separate Children Act judgment delivered on 30 November, I said I would be able to find unequivocally that F is entitled to the declaration he seeks. He is the father of C. This judgment explains my reasons for that preliminary indication. It also comments upon the actions and omissions of the Herts and Essex Fertility Centre (HEFC) for identical reasons to those described by the President in his judgment. It is both alarming and shocking that, once more, a court is confronted with an instance of such striking ineptitude from an organisation which is subject to statutory regulation and monitored by a statutory regulator namely the Human Fertilisation and Embryology Authority (HFEA).

We’ll come onto it in detail later, but because the Clinic refused to comply with Court orders, the Court had to make the orders again, but with a penal notice attached. It is pretty unusual for a Court to need to do that against an organisation (as opposed to say a lay person)

 

 

F v M and Others 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3601.html

 

When the parties contacted the clinic to ask for the records, and even when Court orders were sent, the Clinic was unresponsive – my reading is that the requests were processed by someone who went into “someone is trying to sue us for something, give them nothing” mode.  (which is not even the way it actually works with a personal injury or negligence claim, where disclosure is part of a pre-action protocol). As it turned out, the Clinic’s resistance to assist and comply with Court orders not only made the litigation more protracted and costly, but they ended up having to offer to pay the costs anyway.

Also, seeing the lawyers involved in the case in the headnote, boy did this clinic mess with the wrong people…

 

 

  • The second noteworthy matter surrounds HEFC’s litigation conduct which has been wholly extraordinary. Notwithstanding both parents’ written authorisations and ready agreement to the disclosure of material from HEFC, the process has been fraught and, at best, piecemeal. There would seem to have been a fundamental misunderstanding of the purpose for which disclosure of records was sought.
  • In early May, only 20 or so pages of medical records were made available. Had there been full and proper disclosure at that stage, the eventual shape of the litigation could have been very different. Again and again, letters were written by M’s and F’s Solicitors. In late May, HEFC was strongly recommended to attend the first court hearing. In response, the Clinic’s finance manager stated that it was not accepted that “HFEC had failed to comply with the necessary procedures;” and the suggestion of attending the hearing was declined.
  • On 29 May an order was made joining HEFC as a party and directing it to file any evidence upon which it intended to rely. Two months later, on 28 July, in the absence of any engagement by the Clinic, F’s Solicitors wrote a lengthy and informative letter, drawing attention to the 7 cases being heard by the President, seeking agreement to fund the father’s legal costs, reiterating the disclosure requests and giving information about the next court hearing.
  • On 10 August, the Clinic’s finance manager emailed F’s Solicitors saying, “to confirm, we will not intervene nor will we be attending the hearing.”
  • On 14 August, I made an order directing HEFC to disclose all and any medical notes relating to M and F’s treatment as well as all correspondence (including emails and other communications) with M and F. I also directed the Clinic to file and serve detailed statements from the Person Responsible and the Medical Director. The HEFC was directed to attend the next hearing on 22 October.
  • On 4 September two statements were provided, one from the Person Responsible, the other from the Medical Director. The covering email from the finance manager indicated that the Clinic would not be in attendance at the next hearing as “this is a Family Law matter.”
  • I cannot begin to understand how such a misapprehension arose as to the proper role for the Clinic in these proceedings particularly given the unambiguous correspondence from the parties’ Solicitors supported as it was by the text of several court orders.
  • On 20 October (about a month after F’s Solicitors had drawn the Clinic’s attention to the President’s HFEA 2008 judgment), an email was sent to the Clinic’s finance manager reminding her that HEFC was required to attend the hearing on 22 October. The response was that the Clinic would not be attending.
  • It was therefore necessary, on 22 October, to make an order with a penal notice attached so as to ensure the Clinic’s compliance with directions. I also listed a hearing to determine the Clinic’s liability for the parties’ reasonable costs. Once again, an order was made that the Clinic should attend the next hearing.
  • On 4 November, Russell-Cooke LLP was instructed by the Clinic. Seemingly that was the point at which the Clinic appreciated the need for assistance from lawyers. As Mr Powell explained during his final submissions, the Clinic’s first point of contact (when faced with requests for information) had been the insurers. Apparently, though this is difficult to understand given the explicit nature of incoming correspondence, the Clinic had not appreciated the gravity of the situation.
  • There was then inter-solicitor correspondence resulting in further disclosure on 10 November. For the first time, critically important laboratory records were revealed showing affirmative ticks by the WP and PP boxes on forms. Two further and important tranches of documents were disclosed on 19 and 20 November just a very few days before the final hearing listed on 24 November.
  • The detail of the Clinic’s litigation conduct is both important and profoundly disappointing set against the framework of the dispute between these parents. The levels of conflict have remained at the highest level throughout. M and F are bitter, resentful and mistrustful of each other. M’s position, in all probability, became ever more entrenched as the result of the Clinic’s lack of engagement and failure to disclose early.
  • The Clinic’s bewildering behaviour has undoubtedly added to a situation of enormous tension in circumstances which were already intensely fraught. It would have assisted greatly if the Clinic had responded to requests for information in a timely and cooperative fashion. Seldom is it necessary to make orders backed with a penal notice against organisations whose aims include a desire to serve the public and to a high standard. It was altogether necessary here.
  • It should also be observed that even by the very end of the hearing, there had been no attempt on the part of the Clinic to engage directly with either M or F. Beyond what had been said formally within the proceedings there has been no correspondence and no apology on the part of anyone at HEFC. That is quite obviously a profoundly shocking state of affairs. Neither parent has had any offer of help, support or explanation for the situation in which they have been entangled. They have been left completely on their own with no ability to understand the reasons for what went so badly wrong.
  • On behalf of the Clinic, Mr Powell accepts that no words would do justice to the emotional distress caused to M, F and their family members. He did not seek to defend the Clinic’s actions; and accepts the criticisms levelled. The Medical Director’s unreserved apology, said Mr Powell, although late is nonetheless candid. The Medical Director accepts that the Clinic’s litigation conduct was wholly unsatisfactory and has prolonged the parents’ distress. He intends to write directly to them apologising on behalf of HEFC and would welcome the opportunity to meet each parent to provide an apology in person and answer their questions.
  • Mr Powell indicates that lessons have been learned and contrition on behalf of the Clinic is genuine. It is a good indication of the HEFC’s remorse that it has undertaken to pay the parties’ costs as they relate to the declaration of parentage proceedings.

 

 

On the fundamental issue, whether the proper consents had been recorded about the treatment and who was to be considered as legal parents for any child produced by the treatment, the Judge had this to say:-

 

 

  • Without descending into more of the detail, I am entirely satisfied of the following – (1) that M and F did sign WP and PP forms prior to the commencement of treatment; (2) that the forms as well as the internal consent forms were signed at the treatment information appointment (as the checklist confirms); (3) that the WP and PP forms have subsequently been mislaid or lost; (4) that M and F received appropriate counselling prior to treatment in relation to the consequences of using donor sperm; (5) that notwithstanding the lost forms the clinic acted within the terms of its licence; and accordingly (6) F is C’s father.
  • Turning from the specifics relating to parentage, there are a number of associated matters which require comment. The first is as to the bemusing and seemingly unsatisfactory response of HEFC to the Legal Parenthood Audit initiated at the request of the HFEA on 10 February 2014 following the judgment of Cobb J AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam).
  • On 1 September 2014, the HFEA wrote to all clinics to inform them of the outcome of the Audit – namely that “nearly half of all clinics that have responded reported anomalies with their legal parenthood consent.” The letter expressly informed clinics – “if you have any doubt about the validity of legal parenthood you should seek your own legal advice. You should also inform the affected patients and their partners.”
  • The underlying message was clear. Clinics should have been supporting and assisting parents. They have an obligation to be open and transparent – most particularly with those whose parenthood was potentially disturbed by administrative incompetence. The parents were (and are) the individuals in most need of advice and assistance; they are entitled to and should have been treated with respect and proper concern. In this instance, M and F were left completely on their own without assistance of any kind from HEFC.
  • The medical files for these parents should have been (but were not) included in the Legal Parenthood Audit which was to be completed over a period of three months. The omission has been reported to the HFEA. It is perplexing to say the least that this couple’s files were missed when account is taken of the chronology of the mother’s telephone calls (from late March / early April 2015) seeking information about the consent forms as well as initial ‘phone calls followed then by a formal letter from M’s then Solicitors requiring information.
  • At the instigation of the Chief Inspector of the HFEA an investigation is about to begin to discover the reasons for the error. There will be a ‘Root Cause Analysis’ undertaken by an independent consultancy for UK regulated organisations so as to identify what went wrong. The investigation will also seek to discover whether the HEFC complied with the HFEA’s request to sample or review files. Importantly, it will examine how the WP and PP forms were mislaid or lost. It is said on behalf of HEFC that the investigation will be thorough and comprehensive.
  • The findings of the independent consultancy will be reported to the HFEA so that decisions may be made about what action should be taken. The medical director of HEFC assures the court that he is committed to “getting to the bottom of what happened, to taking all remedial action and to working with the HFEA to ensure that the circumstances which gave rise to this case can never happen again.”
  • The HEFC has taken other steps including the installation of ‘Meditex,’ a new Fertility Database which will require the scanning in of Forms WP and PP enabling immediate retention and availability for inspection. The database is comprehensive, internationally recognised and used by other leading clinics across Europe.

 

It really does seem likely that there will be many more of these cases. I’d suggest that hospitals stop putting Court orders from family Courts in the “Go Screw Yourselves”* section of the in-trays.

 

(*That wasn’t actually intended to be an artificial insemination joke when I first wrote it, but hey, I’m not one to snub serendipity when it comes a’knocking)

 

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I would put this as a must-read (adoption case, dynamite)

 

The case is very fact-specific (the facts are extraordinary) but it is still very important.

 

I’ve written before about the leave to oppose adoption case law and whether this is a meaningful legal right given that there are no reported cases of an adoption being successfully opposed (there’s one law report of a Court being persuaded to make a Residence Order rather than adoption, but the child remaining with the prospective adopters).

 

For it to be a meaningful legal right, there must be some set of circumstances which would result in the opposition to adoption resulting in placement back in the birth family. But, the consequences of that for the recruitment and retention of adopters is massive.

 

As Holman J observed, this case is likely to attract strong opinions on both sides, and it does turn very much on an unprecedented set of facts.

 

Re A and B and Rotherham Metropolitan Borough Council 2014

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/47.html

 

 

 

The child, C, was the subject of Care proceedings and a Care Order and Placement Order were made in August 2013. The child was placed with prospective adopters (A and B) and they duly applied for an adoption order.

 

At the time of this hearing, the child was 20 months old and had lived with A and B for 13 months.

 

The child’s genetic father, who had not been a party to the care proceedings (and who does not hold PR for the child) sought leave to oppose.

 

This is the telling paragraph

 

It is accepted by all concerned in this case that if the father had come forward and the true paternity had been established at any time up to the moment when the child was actually placed with A and B, then he would not have been placed with them and, after due assessment of her, would almost certainly have been placed with the aunt.

 

 

I’d urge you to read the whole thing, but that paragraph is dynamite.

 

As is this one

 

The case and dilemma has provoked divergent professional opinions. The front line social workers for each of the child and A and B support the making of an adoption order. A child psychologist who was jointly instructed to perform a “paper exercise”, but has not met anyone concerned, favours the making of an adoption order. The Director of Safeguarding Children and Families and interim Strategic Director Children’s Services of the local authority (equivalent to the Director of Social Services in this field), who is the decision maker and who expresses the considered opinion and case of the local authority, firmly resists adoption and advocates that the child moves to live with the aunt. The child’s guardian also strongly advocates that outcome.

 

 

That made me blink several times, so I will spell it out. The social workers supported the adoption, but the Guardian AND MORE SIGNIFICANTLY the Director of Social Services supported the child being placed with the paternal aunt.

 

That really is an extremely difficult issue to resolve. As a Local Authority legal hack, the idea of a Director and Social Worker in an intractable difference of opinion makes me shudder. [This Director was clearly very fair minded in not just saying “well, I’m the big boss, so do what I say”]

 

I’m not surprised by what Holman J says at the opening of this judgment.

 

 

I have been a full time judge of the Family Division for almost twenty years. In all that time, apart from cases concerning serious ill health, I have rarely heard a more harrowing case. The hearing was a very painful one for all concerned, and I sincerely thank all parties and the professional witnesses for their attention, dignity and, to the extent possible, good humour. I know, and deeply regret, that my decision will cause intense grief. After hearing all the evidence and argument, and after due consideration, I am, however, clear as to the outcome, which I do not reach narrowly or marginally.

 

 

I’ve read many of Holman J’s judgments over the last few years, and he really has dealt with harrowing, peculiar and emotionally draining cases repeatedly, so to say that speaks volumes.

 

 

This passage will probably appear again – it is how the Court deals with the issue of “speculation” (and I think it is wonderfully constructed)

 

There is one further “legal” matter which it is convenient to mention in this section of this judgment. At times during the hearing, when longer term risks or advantages were being mentioned or considered, Mr Power referred, understandably but somewhat dismissively, to “speculation”. Advocates, and also judges, often do dismiss points as speculative or speculation. However, in relation to adoption, the Adoption and Children Act 2002 very clearly does require courts (and adoption agencies) to speculate. It requires, as the overarching duty, that the paramount consideration must be the child’s welfare throughout his life. This child is still less than two. He is healthy, and his normal life expectancy may be around a further 80 years. It is probable (but speculative) that he and his half sister, F, and his cousin, G, will outlive all the adults in this case by many years. I am required by statute to take a very long term view, but I cannot gaze into a crystal ball. I can only speculate. More specifically, the court is required by section 1(4) (c) of the Act to have regard to “the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person.” Whilst that paragraph requires the court to consider only the “likely” effect, any such consideration involves speculation; and (speaking generally) the further ahead one looks (and one must envisage a whole lifetime) the more speculative such consideration necessarily becomes. My decision in this case does include speculation. That is what Parliament has told me to do.

 

 

You may, as I was, be interested in how it was that this aunt was not a feature in the care proceedings. If she had been known about then, the Placement Order would not have been made and the child never placed with the prospective adopters A and B. So why wasn’t she known about?

 

 

This is the most fact-specific bit of the case, I think. (It is not THAT unusual for a birth father to be untraced during the proceedings and to appear later, it is the WHY that is significant here. Mr E here is NOT the genetic father, but he is the man who appears on the birth certificate as the father, and who was treated as the father in care proceedings)

 

The mother is a young woman of white ethnicity who is still in her very early twenties. She has had problems with both alcohol and drugs. While a teenager she had already had two children by different fathers. They are now aged about 5 and nearly 4. They were removed into care and have since been adopted together by one adoptive family. (I will refer to them later as the adopted maternal half siblings.) The mother began a relationship with Mr E. He, too, has had an unstable past and has a criminal record for a range of offences of both violence and dishonesty, and a recorded history of drug abuse. In March 2013 the mother gave birth to C. He was a normal, healthy baby, and is now a normal, healthy young child. As had already been pre-planned by Rotherham, care proceedings were immediately commenced and the baby was removed from the mother five days after his birth and placed with foster parents. Neither the mother nor Mr E engaged with the care proceedings nor, effectively, with the local authority. However, the mother and Mr E jointly registered the birth on 18 April 2013, jointly stating and signing that Mr E was the father to the best of their knowledge and belief.

 

[Keep that in mind – the mother was white]

 

 

The child’s social worker, from the end of March 2013 and still now, is Miss Claire Fogwill. She did not know or meet Mr E for some time. She did, however, see the baby. I have seen photographs taken of him shortly after his birth, including the original colour photograph which is part of the later formal application form for the placement order. Although not black, the baby is very obviously very brown and has obvious negroid features. These are not racist comments. They are relevant facts. As all concerned with the case agree, he very obviously appeared to be of mixed race. Miss Fogwill said in her oral evidence that “when [she] first saw him as a baby he seemed obviously to have a black parent or at any rate a strong black/negroid genetic strain.”

 

Miss Fogwill was finally able to meet Mr E, who was in prison, on 22 May 2013. She said that she was expecting to meet a black man and “was quite shocked” when he came into the room, since he appeared to be an entirely white man. She asked him whether he was the biological father. He said that he was. (It is, of course, entirely possible that the mother had assured Mr E that he was the father, if she had never confessed to him that she had been having sex on the side with the actual father. As I have no evidence at all from either the mother or Mr E, I simply do not know.) Miss Fogwill questioned Mr E further and, according to Miss Fogwill, he told her that the baby was very brown because he, Mr E, had a Burmese mother, and added that the baby would become paler with age. Neither Miss Fogwill nor, so far as I am aware, anyone else, took any steps to seek to verify whether in truth Mr E has a Burmese mother. I personally do not have the slightest idea. Miss Fogwill claimed that she was “not able to meet the mother again to ask her about paternity”, but in truth she made little effort to do so, and she made no enquiries of the mother’s own mother whose whereabouts were settled and known.

 

Miss Fogwill made reports to Looked After Reviews on 12 April, 13 May and 11 July 2013. Also present at, and chairing, these reviews was the Independent Reviewing Officer (IRO). The minutes of the first two reviews record that the child “… is a child of mixed heritage. His mother is white British … the social worker is, to date, unclear of father’s ethnicity and has asked [sic] father to clarify this …” The minutes of the review on 11 July, also chaired by the IRO, record that “… the social worker has clarified with father that he is dual heritage as his mother is Burmese … the parents wished for the child to be referred to as White British, despite his presentation not reflecting this. Father [viz Mr E] informed the social worker that he expected the child’s skin colour to change with age …” There is no hint in those minutes that the IRO queried the account of paternity or suggested that further enquiries should be made. I do not make a criticism of the IRO for she has not been involved in this hearing and has had no opportunity to state her own point of view, but I accept the point made by Mr Prest that the responsibility of Miss Fogwill appears to have been shared with others. Miss Fogwill has, however, accepted that she made a serious error in swallowing the explanation of the Burmese mother (i.e. the child’s grandmother) and not investigating paternity further, and she has apologised from the witness box to both the true paternal family and the applicants for adoption. Miss Fogwill’s formal report to the court dated 28 June 2013 in support of the application for a placement order depicts a photograph of the child as I have already described, and refers to his having black hair and brown eyes and a dark complexion. It continues that the mother is white British and Mr E is half white British and half Burmese as his mum was Burmese and father white British. “[C’s] skin is quite dark however [Mr E] states that as [C] becomes older his skin will become paler. [Mr E’s] skin is white.”

 

The present guardian, Mrs Sheila Hassall, also acted in the care and placement proceedings. In her report dated 19 July 2013 she describes Mr E as “White British Burmese” and says at paragraph 12 “[C’s] paternal grandmother is Burmese, although I understand his father [viz Mr E] views himself as white British. At present [C] has the appearance of a baby who is not white British …” As I understand it, the guardian herself never actually met either the mother or Mr E. So she merely accepted the story via the social worker. She said that she only ever saw a blurred black and white photocopy photograph of the child. She said that she visited the baby once at the home of the foster mother. However he was asleep, face downwards, with his head largely covered. She only saw one arm sticking out. The arm looked brown but she did not examine the baby further. Mrs Hassall accepted her share of responsibility. She said during her oral evidence: “I make a heartfelt apology we are in this situation. I feel desperately sorry for all those involved.”

 

I have already referred to the report to the court for the application for a placement order. I do not know whether the circuit judge saw the original with the colour photograph which, as I have described, very clearly depicts a brown child of mixed race with negroid features; or whether he saw a black and white photocopy, one version of which I have seen, which shows the child’s face as a barely distinguishable large black blob like a large blob of spilt ink. At all events, the judge appears not to have raised any question about true paternity at the, probably short, hearing when he made the care and placement orders.

 

 

If you are following this, Mr E was named as the father on the birth certificate, the mother said that he was the father, and he said he was the father. The contradictory evidence (of people’s eyes) was firstly an area that people feel uncomfortable with – that of colour, and secondly Mr E had given an explanation for it that was accepted. On that first point, just reading the paragraph, even when said by a Judge, it made me feel uncomfortable to read that ‘n’ word.

 

So a last opportunity seriously to question paternity and consider obvious avenues of further enquiry was lost. I accept, of course, that such enquiries might not necessarily have uncovered the true father, but they well might have done, for the affair between the true father and the mother was well known in the community and circle within which they lived. The mother’s own mother certainly knew the true facts, as will later appear.

 

 

Let’s also not forget that in a culture of 26 weeks, no delay, and assessments only being done if they are ‘necessary’, it might have taken some persuasion to get the DNA test of Mr E done. If it had been done, the proceedings would have been delayed, but an inordinate amount of time and pain would have been avoided.

 

How did the real father ever find out about this? Deep breath, because this is quite complicated too.

 

The father was in a long-term relationship with someone else, Miss D. When he had been sleeping with the mother, he was cheating on Miss D. There had been speculation in the community and gossip, and someone came up to Miss D and showed her a photograph of the child as a baby.

 

Soon after the child was born someone showed Miss D a photograph of the baby. She could see that the colour and the features looked like her own daughter, F, and also like the father. She told him “I really think he is your child.” He continued to deny to her that he had had sex with the mother and that, therefore, he could be the father.

 

It seems, though this is not explicit, that these suspicions continued and finally the father’s sister (the aunt in question) approached the Local Authority in March 2014   to say that she thought her brother was the true father of this child. (For timing purposes, that’s seven months after the Placement Order, and two months after the prospective adopters had made their application to adopt)

 

On 6 March 2014 the aunt first contacted the social services and said that her brother might be the father of the baby. Miss Fogwill was shocked and surprised by this news. She and a more senior colleague interviewed the father on 14 March 2014. She then immediately arranged for DNA sampling and testing of the baby and the man, and a report dated 24 March 2014 established a 99.9999 per cent probability that he is indeed the father. All parties including A and B accept that he definitely is the father and the case has since proceeded on that basis. The father is a black African who was born and brought up in that continent. He is now aged 32. His own father died when he was young. He himself travelled to England in 2001 and claimed asylum. He has lived here ever since and has indefinite leave to remain. He is the seventh of a large family of eight children. His own mother, now aged 64, now lives in the Midlands. Two brothers live in the Midlands and South Wales. A sister lives in East Anglia, and his youngest sister, the aunt, lives in the Home Counties. The brothers and sisters in England and Wales have between them eight children who are paternal first cousins of C. Some of them are of mixed race, having also a white parent. The father’s three other siblings live variously within Africa and Canada. There is, therefore, a considerable extended paternal family, mostly located within England and Wales.

 

 

But hold on a minute – this all happened within a small community, and whether the father knew or not that he was the genetic father of this baby, he must surely have known that as he had been sleeping with the mother, there was a chance that he might have been?   The Judge found that he was aware of that.

 

And did he know that the baby was in care?

 

This evidence as a whole satisfies me that, within a very few weeks of the birth at the latest, the father knew perfectly well that it was highly likely that he was the father of the baby. He could not of course be certain, since he knew also that the mother had had other sexual partners. But she told him, in effect, that the baby was half black and that he had been her only black partner. Short of DNA testing, the likelihood was obvious.

 

He took no action at all. He showed no real interest in the baby, or even much interest in seeing him, although he did ask the mother if he could do so. I do not know why not, but it was probably due, at least in part, to his continuing stance of denial to Miss D. Whatever the reason, it is a significant part of the history of this case that for almost a year the father showed no interest at all in, or commitment at all to, the child, and denied rather than asserted that he was the father. So as well as the responsibility of Rotherham, the guardian, and possibly the court, for not investigating paternity further, a very heavy responsibility for events lies upon the father. If he had shown any real interest in the baby and put himself forward in any way as the likely father, then the true facts would probably have emerged much earlier and the baby would never have been placed with A and B.

 

A separate and distinct question is when the father first learned that the baby was in care. His case is that he learned this for the first time at the beginning of March 2014. He said that he saw the mother’s mother in the town. He asked her where the child was. The mother’s mother said that he was in care and that the mother had lied to him. He then immediately spoke to and told his sister, the aunt, and at his request she immediately contacted the social services. He says that in the first weeks after the birth he had indeed asked the mother if he could see the baby and she had fobbed him off by saying that the baby was staying with her mother or sister. She also misled him into thinking that she was caring for the baby by asking him on a few occasions for money for nappies.

 

To the very end of his evidence, even when recalled and admitting what I have recorded above with regard to his knowledge of paternity, the father remained adamant that it was only around early March 2014 that he first learned that the baby was in care, and that he at once informed the social services and requested that he or his family could care for the baby.

 

 

This last point might be critical – if the father knew that he was probably the baby’s father, he could have legitimately kept quiet not to rock the boat and jeopardise his relationship with Miss D UP UNTIL he knew that the baby was in care, whereupon it was time to speak up.

 

The Court concluded that his evidence that he had not known until shortly before his sister approached Social Services should be accepted.

 

I have to decide whether I am satisfied on a balance of probability that the father knew that the baby was in care as early as about April 2013, as the local authority allege; or only in early March 2014, as he himself claims. On this issue there is force in the point Miss Ford makes on the third page of her written closing submissions dated 21.11.14, and as she elaborated orally. The father’s case is that he first learned that the baby, of whom he was likely to be the father, was in care in early March 2014. He immediately contacted the social services (initially via his sister) and has, unquestionably, strenuously sought the move of the child to live with him or his family ever since. It was only later that he learned that the child had actually been placed for adoption or that there was a current application to adopt him. So, as Miss Ford puts it, his conduct by contacting social workers in March 2014 can only be explained by his having only recently learned that the child was in care. No other event or trigger has been identified as to why, having done nothing and shown no interest for so long, he suddenly did then make the contact which he did. Miss Ford asks, rhetorically: Assuming that he had known that the child was in care from, say, mid or late April 2013, why did he suddenly do something and with such resolve in March 2014? She submits that the activity in and after March 2014, for which there is no known other explanation, is really only consistent with his having recently learned in March 2014 that the child was in care.

 

I take into account the demeanour of the father in the witness box when he was recalled. At the same time as now admitting that soon after the birth the mother herself had told him that he was the father, he maintained his account, apparently convincingly, that he only knew that the baby was in care almost a year later, and said that the social worker must have misunderstood him. I also accept the force of Miss Ford’s point as described in the previous paragraph. There was room for misunderstanding, and I am not satisfied on a balance of probability that the father knew that the baby had been taken into care earlier than early March 2014, when he took action at once.

 

 

 

So, that’s how this situation arose. The person who had been treated as the father in the care proceedings was not the real father, and the real father had not known of the care proceedings because nobody had thought to tell him. The only person who knew both key sets of facts was the mother, and she had taken no action.  [The maternal grandmother might have known, by my reading, but whether that is definitive is hard to say]

 

 

The judgment then talks about the various assessments, but the long and the short of it is, the options available were to make an adoption order to A and B, or to remove the child from A and B and to place with the paternal aunt.

 

A and B were clearly very good, capable and loving people, well capable of caring for the child. The Judge said this about them :-

 

 

Even before C was matched with them, A and B prepared themselves very thoroughly as prospective adopters. They read widely. They attended courses. They learned about the importance of attachment, stimulation and other parenting qualities. This stood them and him in good stead. I accept unreservedly the current assessment by Miss Lancaster that A and B are the “perfect” adoptive couple. She said in her oral evidence that in spite of all the challenges they are remarkable people. They are excellent adopters doing a remarkable job. If she could paint the ideal adopters they are not far from the mark. They have an excellent understanding about attachment, about which they were trained. The have a very good understanding about the impact of loss and trauma. They have great appreciation of the kind of parenting styles that work well.

 

I accept unreservedly that C is now very well attached to A and B. He feels, and is, secure with them. They provide an excellent home. They are also undoubtedly deeply attached to him. B said very movingly “He is such a happy, settled, loving little person who knows who we are … I am so proud of him. I love him so much. I will always love him. He will always be my son.” C is also a familiar and much loved member of the extended families of both A and B.

 

There is no doubt that if the true paternal family had not emerged and put themselves forward in the way that they have, an adoption order would have been made several months ago.

 

 

And the Aunt?

My own impression of the aunt was very favourable. She is much more articulate than her brother, the father. She appeared to be thoughtful and flexible, and insightful and understanding of the issues in this case. She said that she has prepared her own son, G, for the possibility that he might be joined by another, younger, boy. She talks to G about C, and G would not be surprised if C became part of their family. She said that G himself is a lovely boy, very caring and very sharing, who plays very well with other kids. She paid generous and sincere tribute to A and B although of course she has never met nor seen them. She said she was just so grateful for what they have done. It is beautiful. They have taken very good care of him.

 

 

Even the social workers who were supporting the child being adopted by A and B were not critical of the aunt, just feeling that the child ought not to be moved.

 

 

[I will quickly note that the Aunt and Miss D were represented pro bono by counsel and solicitors, which was an extremely helpful and generous thing]

 

Holman J made it plain at the outset and repeatedly, that he was not approaching the case in a narrow “nothing else will do” manner, due to the recent authorities, but in weighing everything up as to what order would best meet the child’s needs throughout their lifetime.

 

 

The legal framework as I have so far described it is agreed by all the advocates in the case, including that I must apply all the relevant parts of section 1 of the Act. In their written skeleton arguments and written final submissions, as well as in their brief oral final submissions, there has been some debate between the advocates as to whether, in applying section 1, I should adopt the approach that I should only make an adoption order if “nothing else will do”. This led to some brief examination of the judgments of the Supreme Court in Re B (a child) [2013] UKSC 33, and some later judgments of the Court of Appeal in which that court appears to have been exercised by what the Supreme Court actually meant by what they said in Re B (most recently the judgments delivered by the Court of Appeal only two weeks ago on 18 November 2014 in CM v Blackburn with Darwen Borough Council [2014] EWCA Civ 1479).

 

In my view that is a debate and territory into which I need not and should not enter. The legal and factual situations in those cases were different. In the present case, the child has already been lawfully and appropriately placed for adoption with A and B for over a year. A range of rights under Article 8 of the ECHR is engaged. There is a continuing legal relationship between the child and his paternal genetic family, with whom he has a father, grandmother, aunts, uncles and a paternal half sibling, but no current psychological relationship. He has never met any of them. (He also has several cousins but they are outside the definition of “relative” in section 144 (1) of the Act.) In this case the child unquestionably also has a private and family life and a home with A and B, and they with him, for which all three of them have the right to respect under Article 8. With so many Article 8 rights engaged and in competition, it does not seem to me to be helpful or necessary in the present case to add a gloss to section 1 of only making an adoption order if “nothing else will do”. (Indeed Mr Nicholas Power might have argued on behalf of A and B, but wisely chose not to do so, that there could now be no interference with the Article 8 rights as between A and B and C mutually except if “necessary” within the meaning of Article 8(2).) Rather, I should simply make the welfare of the child throughout his life the paramount consideration; consider and have regard to all the relevant matters listed in section 1(4) and any other relevant matters; and make an adoption order if, but only if, doing so “would be better for the child than not doing so”, as section 1(6) requires. If the balance of factors comes down against making an adoption order, then clearly I should not make one. If they are so evenly balanced that it is not possible to say that making an adoption order would be “better” for him than not doing so, then I should not do so. If, however, the balance does come down clearly in favour of making an adoption order, then, in the circumstances of this case, I should make one. I do not propose to add some additional hurdle or test of “nothing else will do”.

 

 

 

The parties had all drawn up balance sheets, and the Judge said something that I find very helpful when looking at balance sheets.

 

I have read and re-read those “balance sheets” and all the written closing submissions, and I have all the points listed there in mind. Judges frequently use the language of “balance” and “balance sheets” (and I do myself. I think lists such as the above are indeed very helpful). But the analogy with balancing scales may be misleading. When weights or objects are put on either side of a scale, their individual precise weights are known, or ascertainable. You can put four objects in one scale pan and seven in the other, and the scales will come down one way or the other due to the aggregate of the individual precise and ascertainable weights on each side. In a case such as this, however, none of the factors have precise weights. All that may be said of any individual factor is that, as a matter of judgment, it is more or less important or weighty than another. Mr Power’s list is long on the advantages of adoption and short on the disadvantages. It is not, however, the number of factors which counts but their respective importance. The Adoption and Children Act 2002 does not itself use the language of balance. It requires the court to “have regard to” all relevant matters, including those specifically referred to in section 1(4). The effect of section 1(6) is that the court must then make a judgment (applying section 1(2) and the paramountcy of welfare throughout the child’s life) whether making (in this case) an adoption order “would be better for the child than not doing so.”

 

 

 

I often read judgments from the High Court and thank my lucky stars that I am not, and never will be a Judge called upon to decide between two impossible situations. This was one of those occasions.

 

My condensing of this judgment is not, and could not be, a fair reflection of the deliberation that the Judge undertook. I would urge you to read the whole judgment to get a proper reflection of the complexities of this matter.

 

Nonetheless, you want to know the outcome, and I need to give it to you, so that debate can occur.

 

 

This case clearly requires taking both a short term and a long term view. C is currently very well placed with “perfect adopters”. They are a well trained couple with whom he is very well attached. He is of mixed race. They are both white and share with him that half of his ethnicity. A and B are “tried and tested” as has been said. His aunt and the principal members of the paternal family are black and share with him that half of his ethnicity. The aunt is a single person. She has not been “tried and tested” as a carer for C, but she has been observed as a carer of her own child, G, and thoroughly assessed as entirely suitable to care long term for C. There would be likely to be short, and possibly long term harm if he now moves from A and B to the aunt, but that is mitigated by his embedded security and attachments with A and B, and can be further mitigated by specialist training and support for the aunt, which she will gladly accept. The unquantifiable but potentially considerable advantage of a move to the aunt is the bridge to the paternal original family.

 

It is my firm judgment and view that it is positively better for C not to be adopted but to move to the aunt. In any event, I certainly do not consider that making an adoption order would be better for C than not doing so. Accordingly I must, as I do, determine not to make an adoption order and must dismiss the adoption application. Pursuant to section 24(4) of the Act, I exercise a discretion to revoke the placement order made in respect of the child on 2 August 2013.

 

The care order made on 2 August 2013 now once again has effect. Rotherham, in whose care C again now is, must engage intensively with all the relevant parties, and file and circulate within three weeks a written care plan setting out their plan for C and how they will implement, in the least damaging way, the process of his move from A and B to the aunt. It is impossible for me or any court to micro-manage that plan and process, and inconsistent with the respective roles and duties of the local authority and the court that I or the court should attempt to do so. If (as I sincerely hope will not be the case) any further resort to the court is necessary, application must be made locally to the designated family judge in Sheffield. A copy of this judgment must be given to, and read by, the Independent Reviewing Officer and all social workers having any continuing role with these families.

 

I have found this decision extremely painful, for I sincerely and deeply appreciate the intense grief it will cause to A and B and to their extended families and friends. But I have not, in the end, found it difficult; and, as I said at the outset of this judgment, it is not one which I reach narrowly or marginally. At the directions hearing in Leeds, when I had read few of the papers (and there were several key documents still to come) and before I had heard any of the oral evidence or argument, I described this as a finely balanced case. By the end, I do not think that it is. I am clear that the welfare of C throughout his life decisively requires that he is not adopted but moves to live with the aunt. It is my duty to make that welfare paramount.

 

 

 

There are a lot of very fact specific components to this case – it is unlikely that another case with exactly these issues will ever appear again. So it is not a definitive ruling for anything other than a case with these particular facts.

 

Nonetheless it is

 

 

  • The first successfully opposed adoption that I have seen since the 2002 Act came into being (and I didn’t find any reported ones going back to the 1976 Act, though I could have missed them)

And

 

  • Potentially significant – here, the assertions of mother and Mr E that Mr E was the father was accepted, and a true father emerged later. That particular set of circumstances (stripped of all of the ethnic features and clandestine affairs) is probably not that unusual. Local Authorities and Courts are somewhat dependent on a mother telling them that there is more than one putative father. Will we see successful challenges to adoption on that narrower aspect? Will we see Courts being more inclined to DNA test putative fathers even where mother is saying that there is only one putative father?