I’ve not come across this question before, so that’s always attractive to me.
And then having seen a question to which I didn’t know the answer, I see that Cobb J is the Judge, so I’m going to get an answer that is clear and shows all the working but succinctly. I’m fairly redundant as someone who summarises and makes things shorter and simpler when I get a Cobb J judgment. I could just put up the link and call it quits.
Anyway, the question is – when a parent in care proceedings is adopted, and the birth family have come back into their life, do the LA have a duty to assess the BIRTH family as potential carers for the child?
F, Re (Assessment of Birth Family)  EWFC 31 (12 April 2021) (bailii.org)
Within these public law proceedings, is there any obligation on the Local Authority to assess members of the ‘original family’ (i.e., the biological/birth family) of the mother of the subject infant child (F), where the mother herself was adopted as a child and raised by adoptive parents?
The arguments of the parties
Ms Persaud argues that it is incumbent on the Local Authority to assess members of the birth family; she essentially argues:
i) they are bound to the mother and to F by a relationship of consanguinity; the legal severance of the family relationship has been “socially undone” by their recent contact;
ii) they know of F’s existence;
iii) they are interested in F; at this stage, F’s ‘birth’ maternal grandmother has not indicated any wish to care for F, but wishes to have contact;
iv) the birth maternal grandmother apparently successfully cared for a child after the adoption of the mother and her brother;
v) the mother continues, even now, to maintain some relationship with her birth father by text and phone;
vi) there are members of the wider family in respect of whom it is understood there are no social work concerns and who appear to be caring adequately for their own children.
She further argues that I could not/should not make the decision now but should await further outline information from local authorities in which members of the birth family live (they are scattered around the country) in order to reach a more informed view.
Ms Anning on behalf of the mother strongly opposes this approach. She argues that the decision should be made now, and that there should be no assessment of her client’s birth family. She makes the following points:
i) The mother strongly opposes any assessment of the birth family; she sees her adoptive family who raised her since she was six as her ‘family’. The mother’s view must weigh heavily in the evaluation of the issue;
ii) The mother contends that the birth family would be wholly unsuited to care for F; she relies on their historical failure to care for her, and what she knows of their current lifestyles; her relatively brief re-engagement with them has adversely affected her;
iii) The mother has in fact currently ‘fallen out’ with her birth mother; the prospects of any family placement within the birth family being free from conflict or drama is small;
iv) The mother feels sufficiently strongly about the issue of assessment that were it to go ahead, she fears that it could destabilise her currently reasonable mental health, and jeopardise her own chance to care for F; she does not feel that she is in a psychologically strong place, and feels anxious about embarking on the next phase in which she will be assessed in the community with F with this ‘hanging over her head’; I have in mind the expert opinion which suggests that if the mother engages successfully in psychological therapies, she may well be in a position safely and appropriately to care for her daughter;
v) Any assessment of the birth family would create divisions within her family – her parents who adopted her many years ago; and with her foster parents;
vi) The birth family, as a matter of law, ceased to be legally the mother’s family when the mother was adopted; there are no recognisable enduring legal rights;
vii) The Article 8 ECHR rights of the birth family are non-existent, or at best highly tenuous, given the lack of legal rights and the limited relationship between the birth family and the mother and particularly F; Miss Anning understandably relied in this regard on the comments which I made in Re TJ (Relinquished Baby: Sibling Contact)  EWFC 6, and those of Peter Jackson J as he then was in Seddon v Oldham MBC (Adoption: Human Rights)  EWHC 2609 (Fam) at 2, to the effect that the making of an adoption order brings pre-existing Article 8 rights as between a birth parent and an adopted child to an end.
Ms Kelly, on behalf of the Children’s Guardian, is, first and foremost, critical of the Local Authority for the delay in bringing this issue to the court many months after it first accommodated F. She further contends that no obligation falls on the Local Authority to assess the birth family in this case, and indeed that given the mother’s opposition to this course, it would be counter-productive for it to do so. In this, she aligns herself with the position taken, and the arguments advanced, by Ms Anning on behalf of the mother. She makes the additional point that one of the key philosophies which underpins a family placement for a child who cannot be cared by his/her parents is to ensure the continuity for the child of blood ties within established networks, where a parent may be able to continue to play a normal/natural role; this, she submits, would not truly be available here for although blood ties would be restored/preserved, the current difficult and tenuous emotional ties between the mother and her birth family, and the absence of legal relationship which was of course dissolved by the adoption many years ago, would make any placement very problematic indeed.
My gut feeling on this, having read those arguments, is that I can see why the Local Authority wanted the Court to answer this question and that I agree with the arguments put forward by the mother that where the mother doesn’t want her birth family assessed, that is the end of it. If the mother were actively putting any of them forward, I’d say they should be assessed.
For the reasons articulated clearly and comprehensively by Ms Anning and Ms Kelly (summarised at  and  above), and further elaborated on in the section above addressing ‘legal principles’, I am satisfied that the Local Authority should not embark on any assessment of the birth family in this case.
I am satisfied that the mother’s birth family are her ‘original’ family (as per ACA 2002) but are not her current ‘family’ nor are they her ‘relatives’ as those terms are used in Part III of the CA 1989. In that respect, their status (if any) in relation to F is materially different from the status of the extended or wider family as discussed in the caselaw referred to above, namely Re A, B, C and Re H. Furthermore, the birth family’s limited experience of F during a short visit in March 2020 (which culminated in a section 47 investigation as a result of the serious injury to F) falls a long way short of supporting any finding that they had acquired Article 8 rights to a family life with F. This right is not established on the basis of biological kinship alone.
Even if the birth family could bring themselves within the definition of ‘family’ for the purposes of the statute/caselaw, this does not place upon the Local Authority any obligation under statute to inform, consult, assess, or otherwise consider them in circumstances such as these (see // above). In that regard, I have assessed what the mother says about her birth family and have done so objectively and critically. In this context, I have been able to undertake the necessary ‘analysis’ of their potential as ‘realistic options’ as long-term carers of F at this stage, without undertaking or commissioning a fully-fledged ‘assessment’ (see Re JL & AO at §92(2)). On the evidence presented, there are at least four clear pointers steering away from the birth family as a realistic option to care for F: (a) the fact of the mother’s adoption 14 years ago following her upbringing characterised by turbulence and significant neglect (see  above); (b) the events surrounding the injury to F in March 2020, and their failure to report the same (see  above); (c) the accepted fact that the mother and her birth mother have a difficult relationship (see  above), and (d) the current view of the professionals that the mother should avoid contact with her family (see  above).
Quite apart from those considerations, I accept that the mother has a strong opposition to the birth family being assessed; this carries significant weight in my assessment (see Re A, B, C at §89(6)(5), Re JL & AO at §50, Re H at §37). In this case, I am further satisfied that involving the birth family in assessment would be likely to have a deleterious effect on the mother’s fragile mental health, at a critical time when she herself is being assessed in the community as a long-term carer for her daughter. It would also, I am satisfied, cause unwelcome and avoidable division in the relationship between the mother and her parents (Mr M and Ms N).
I should add that I could see a situation in which a birth family could properly fall to be assessed in circumstances such as these, where for instance the previously adopted parent (the mother or father of the subject child) had re-connected successfully with his/her birth family, and this had been a wholesome and successful reunion. But that is plainly not the case here.
That is my judgment.