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Relinquishing a relinquishment

 

There’s an unofficial competition in this blog for ‘the worst case of the year’ and although it is only October, I think it may be hard to find one worse in the next two and a half months.  It is an unwelcome award and nobody tends to give an acceptance speech for them, it is more “I’d like to blame the following for this…” than a sobbing Gwyneth, and certainly not a Sally Field “You…like me”

 

“Relinquish” in this context means the decision by a parent that they cannot care for their child and would want a Local Authority to arrange for the child to be adopted – consensual adoption would be another way of putting it. I don’t really care for the word ‘relinquish’ myself, but we don’t seem to have settled on a better word yet.

 

Anyway, this is a case in which parents who had four children found themselves with a fifth on the way (at a time when they appeared to be in the midst of a separation) and decided that adoption was for the best for the new baby.  They asked the Local Authority to arrange this and the appropriate steps were taken, and prospective adopters were found who were willing to foster the baby during the process.

 

So far, everything is fine.

 

The problem arose when the parents changed their mind about adoption, and what happened then.

As this is a judgment about a Welsh case, the numbering of some of the statutory provisions may be slightly different to the English ones, but once you square the number of the section of the relevant Act, the wording is the same.

Foster carers v A, B & A Welsh Local Authority [2019] EWFC B52 (27 June 2019)

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B52.html

 

The case was decided by Francis J

 

5                     It is important that I record from the outset that Mr Boothroyd, on behalf of the local authority, has made a complete, fulsome and obviously well-meant apology for the failings of the local authority in this case.  I hope that in due course the carers and the parents will be able to accept that apology, for without the failings of the local authority these proceedings would not, in my judgment, have been necessitated.  Whether, and if so, to what extent proceedings are later taken against the local authority is not a matter for me – or certainly not a matter for me at the moment.  I do tentatively suggest, however, that if any proceedings against the local authority are taken at a time when I am still a judicial office holder, it would be appropriate for such applications to be heard by me.

 

6                     I said at the outset of these proceedings, and it is worth me repeating now, that the human misery in this court is palpable.  From everything that I have read and heard, although I have heard no oral evidence, it seems obvious to me that the applicants and the parents are all thoroughly decent people who all wish the very best for A, with whom this court is concerned.

 

7                     In circumstances which I shall shortly relate, these two decent couples have found themselves pitted against each other in litigation which none of them could have wished for in their worst nightmares.  In short, the position can be described as follows, although I shall relate it in more detail shortly.  Because the birth parents already had four children between them, and because at the time when it was anticipated that A would be born they had personal difficulties and had briefly separated, they formed the conclusion, at least for a time, that it would be better for them, their children, and most particularly for A, if they were to relinquish her for adoption.  It is hard to think of a decision, as a parent, that is more difficult to make, but I am completely persuaded from everything that I have seen and heard that they decided to relinquish A out of love for her and the desire to do the best for her.

    …When the mother informed the local authority social worker of her decision to relinquish her unborn child, it was immediately accepted by that social worker as being for the best, and the local authority put in place proposed adopters from birth.  In my judgment, they had a duty to discuss this with the mother, in fact with both parents, in detail, before accepting the position rather than actively encouraging them to go through with the adoption.  The Adoption Agencies Regulations 2005, and the Welsh equivalent, pursuant to s.53 of the Adoption and Children Act 2002 mandate the local authority to provide pre-birth counselling to the mother, which would include whether the mother could care for the child with support or whether there were members of the family who could care for her in the short or long term.  Following the birth, the social worker must counsel the mother to see if she still wanted to the child to be adopted.  At the first statutory review, consideration should be given to whether there still remains a chance that the child will return home.  The local authority must do whatever it can to ensure that the child is brought up within her birth family if at all possible.  Prospective adopters, who are selected to accept a relinquished baby from hospital, should be informed they will need to be robust because of the possibility that the parents may change their minds.

The child has lived with the prospective adopters since she was 3 hours old, and had recently had her first birthday.

 

Leading up to the difficulties, around three months after the birth of A

24                 On 25 September 2018, the mother met with the guardian to sign the relevant consents to relinquish A, but due to the mother’s reservations the guardian advised the mother not to sign the consents.  In my judgment, this event on 25 September 2018 is a critical event.  The following day the guardian sent an email, in which she recorded that she was unable to have the consent form signed as it was, and I quote, “Clear that the parents want A to be returned to their care.  They feel circumstances have changed since relinquishing.”  The guardian wisely advised the parents to seek legal advice.  I repeat that this was 25 September 2018, about nine months ago.

 

25                 A contact recording on 5 October 2018 notes, and I quote, “Whilst the mother was cuddling A she whispered to her, ‘I’m going to get you back’, before repeating, ‘Mummy is going to get you back.’”  On 8 October 2018, the social worker recorded that the mother said that she felt that giving A away was a mistake and that she was due to see her solicitor on Thursday.  There is a great deal more in the guardian’s chronology, but what is abundantly clear is that it was only a short time after the birth that the mother, and then, in due course, supported by the father, showed increased anxiety about her decision and increased reluctance to let A go.

 

It was clear by this stage that the mother was having significant doubts about A being adopted.

 

26                 It is evident, and Judge Garland-Thomas so found in the care proceedings to which I will shortly refer again, that in October 2018 the mother was informed by a local authority social worker that if she changed her mind an assessment would need to be carried out which would involve the other children.  This was as devastating for the mother as it was incorrect.  It was devastating because it terrified the mother and, I dare say, the father when she relayed it to him that further local authority involvement with their family would now ensue, with all the risk to the other children that they had been through already, as I’ve recounted above.

 

27                 It is completely evident to me that the birth parents became frightened that an inquiry would now follow into their capacity to care for the four children already at home with them — certainly three of them, one of them I dare say being above the relevant age.  The mother was understandably concerned about previous local authority involvement.

 

28                 Judge Garland-Thomas found that by March 2019 both parents had indicated, reluctantly, that they agreed that A should be placed for adoption.  Judge Garland-Thomas found, however, that on the way back from court on 3 April 2019, the mother disclosed that she did not agree with the plan and that she wanted A back in her care.  It was this comment of the mother’s that persuaded the local authority that they should issue care proceedings.  Judge Garland-Thomas found, and it is obvious to me that she was correct in this finding, that the placement of A shortly after her birth as a foster to adopt placement was not one which had any legal foundation.  It is accepted that the parents agreed accommodation under s.76 of the 2014 Act, but there was no compliance with other legislative requirements.

 

The parents withdrew their consent to adoption.  (it is not clear as to whether they formally withdrew their consent to section 20 foster care accommodation or were informed that they had the legal right to do this)

The Local Authority issued care proceedings for A.  That seems, to me, to be a sledgehammer approach but in the interests of fairness there probably wasn’t any other “legal” mechanism for resolving this.  (the Court can make all sorts of useful declarations under an Adoption application, but an adoption application could not be made).  I’d like to know more about what attempts were made to resolve matters via conversation and social work and possibly legal advice for the parents, but we just don’t know from this judgment.  So if the LA felt that a Court should make the decision as to whether A would go home to parents or stay with the current carers, that was the only legal route for doing so.  (The question of whether it was necessary for the Court to make such a decision is a different matter)

I’m also not sure about threshold, and it turns out that my uncertainty was echoed by two Judges.

 

32                 At the first directions hearing within the now issued care proceedings, it was evident that threshold was disputed.  The local authority sought to rely on the likelihood of emotional harm and neglect arising from the fact that A was relinquished at birth and there had been no contact between the parents and A since October 2018.  Judge Garland-Thomas found herself having to grapple with the relevant date for threshold.  It transpired that the local authority had pleaded three different relevant dates.  Their initial threshold document pleaded the relevant date was 4 July 2018, being A’s birth date.  On behalf of the local authority, this was abandoned by Mr Boothroyd at the hearing before Judge Garland-Thomas and the second threshold document dated 24 May 2019 pleaded the relevant date as 3 April 2019, the date on which the mother requested that A be returned to her care.  Later, in submissions, Mr Boothroyd on behalf of the local authority suggested that the only feasible relevant date could be the date on which the mother originally changed her mind, namely about 25 September 2018. 

 

33                 Judge Garland-Thomas found that it is clear to her that the only date which could possibly be the relevant date is A’s date of birth, 4 July 2018.  She found that the submission that the relevant date is either 3 April 2019 or possibly 25 September 2018 is not sustainable.  On each of those dates A remained in local authority care, where she had been since 4 July.  The judge found that any date other than 4 July 2018 is therefore an artifice seeking to place some blame on the parents for their change of stance.

 

I’m not at all convinced that a parent lawfully exercising their statutory right to change their mind about giving a child up for adoption (particularly when papers had not been signed) gives rise to a likelihood of harm to that child attributable to the care given by the parents not being what it would be reasonable for a parent to provide.

 

36                 The judge found, in paragraph 28 of her judgment, that it would be necessary for the local authority to show, on any of the dates proposed, that there is a lack of care being provided by a parent which gives rise to threshold.  The judge said that she was satisfied, and she so found, that the local authority cannot establish that A has suffered, or that she is at risk of suffering, significant harm attributable to the parents as at any relevant date.  The judgment of Judge Garland-Thomas, therefore, brings the public law care proceedings to an end.  The application for a care order has been dismissed and the care proceedings now will formally end today with the handing down of her judgment

 

There might be a scenario, when the reasons for relinquishing in the first place obviously and clearly give rise to a likelihood of harm if the child is at home with the parents, but just changing their mind isn’t it.

Judge Garland-Thomas, correctly in my judgment, concluded that when the local authority proceeded on the basis of a foster to adopt placement they did not have in place the legal framework to enable them to do so, and care proceedings should have been issued earlier than they were.  It was completely clear by at least 25 September 2018 that the parents were equivocating about their consent to adoption.  There is a duty on this local authority to support and assist parents in the position that these parents were in, and I have already set out the relevant Adoption Agencies Regulations that apply here in Wales.

 

38                 Instead of providing that support and counselling, the local authority actively encouraged the parents to proceed along the adoption route, and even, albeit implicitly rather than explicitly, allowed the parents to feel that failure to continue to relinquish A for adoption could give rise to an inquiry in relation to the other children.

 

39                 Mr Boothroyd on behalf of the local authority, has referred me to a famous but now somewhat old lecture given by Lord Mackay of Clashfern in1989, when he delivered the Joseph Jackson memorial lecture.  It is to be remembered that 1989 is the year of the Children Act, albeit it that did not come into force in 1990 or maybe even 1991.  During the course of that lecture, Lord Mackay said this,

 

“The integrity and independence of the family is the basic building block of a free and democratic society and the need to defend it should be clearly perceivable in the law.  Accordingly, unless there is evidence that a child is being or is likely to be positively harmed because of a failure in the family, the state, whether in the guise of a local authority or a court, should not interfere.”

 

40                 The lecture is to be found reported in New Law Journal vol 139 at p.505.  The quoted paragraph being at p.507.

 

41                 Mr Tillyard in sensitively but, if I may say so, in characteristically bold fashion, criticises the local authority.  He lists inter alia the following failings:

 

42                 1.  When the mother informed the local authority social worker of her decision to relinquish her unborn child, it was immediately accepted by that local authority to be for the best, and the local authority put in place the proposed adopters from birth.

 

43                 I agree with Mr Tillyard’s submission and so find that they had a duty to discuss this the parents in detail before accepting the position, rather than actively encouraging them to go through with the adoption.

 

44                 2.  The local authority should have permitted the mother time to reflect on her decision to relinquish A following the birth, rather than asking her to leave hospital within three hours of A being born.

 

45                 3.  The applicants, that is the carers, had not been approved as foster carers, and so A should not have been placed with them from birth.

 

46                 I wish to make it completely clear that in saying this I do not criticise the carers at all. I criticise the local authority.

 

47                 4.  Once A was placed with the carers, the local authority took far less interest in the mother’s welfare than they should have done.  It took them some three weeks before they even organised contact.

 

48                 5.  The local authority was placed on notice by the guardian in September 2018 that the parents’ consent was likely to be in issue.

 

49                 In my judgment, the local authority should have fully investigated this as soon as it became evident to them.  That was their clear duty.  The local authority told the mother that once she signed the papers for adoption in September or October there would be a final contact session.  The mother was not aware, because nobody told her, that she could have requested ongoing contact.

 

50                 It is clear that, had the local authority carried out its statutory duties pursuant to statute and regulation, from at least 26 September 2018, these proceedings would not be happening. It is overwhelmingly likely that had that action been taken last September, as I have said just over nine months ago, the parents would have been rehabilitated with A and the carers, however sadly, tragically and reluctantly, would have conceded this.  It is almost beyond belief that we are now some nine months later.  Who can possibly blame the carers now for bringing the applications that they do, both within wardship proceedings and for seeking leave to bring the adoption application?

 

 

As a side note, the Judge noted that the mother and father, who stood shoulder to shoulder and had absolutely no conflict between them were represented separately.  This does seem to have become simply the de facto norm position rather than anyone turning their mind to an actual conflict or the genuine possibility of a conflict.  The Judge made remarks which may have wider significance

51                 The mother and the father have each been separately represented in these proceedings before me.  I questioned the need for this; not out of any sense of criticism, but because it seems to me that they stand together shoulder to shoulder in this application.  Of course, as I have recounted above, there was a time when they were separated and that separation appears to have been a significant part, although not the only reason, for the decision to relinquish the baby.  I can well understand that that led people to think that they should be separately represented, however, when questioned about this the best answer that I was given as to the reason for separate representation is that this is what normally happens in public law care proceedings.

 

52                 As I have said, I do not intend to and do not criticise either of the birth parents nor any of the legal representatives for the decision for separate representation.  I do, however, tentatively suggest that if it is obvious to advocates that two parties to proceedings have identical cases, ambitions and evidence, attention should be given to the possibility of single representation.

 

Moving on

 

instead of accepting the facts, the local authority proceeded, as I have said, as if consent was still forthcoming.  I am the first to recognise that local authorities work under intense pressure of work and in circumstances where funding has been persistently and repeatedly reduced.  The pressure on local authority social workers and lawyers is often intolerable.  However, the local authority should not, and cannot, make the mistakes of the kind that have been made by this local authority in this case.  I have already used the words “human misery” above, and I repeat those words now in the sense that the human misery caused by the failings of this local authority are almost too much to bear.

 

55                 Moreover, and in any event, the cost in pure monetary terms of these proceedings, and of any likely proceedings that may in due course be brought against the local authority, will far outweigh any possible savings that could have been made by the inadequate attention that was given to this case.  It is not my task in the course of this judgment, least of all when I have heard no oral evidence, to blame individuals.  Whether this is the failure of one or two individuals in the local authority, or a systemic failure is not something that I can or should comment on in this judgment.  I can only hope, however, that there will be a thorough review by those at the top of the legal department of this local authority to consider what failings were made, and how steps can be put in place to make sure that they can never be repeated.

 

56                 It is clear to me that the carers of A are thoroughly decent people, who have thought of her arrival into their lives as the fulfilment of a dream.  To have that dream taken away from them, as these proceedings invite, is to heap upon decent people misery of a kind that is completely unacceptable.

 

57                 For the birth parents who have pleaded for the return of their child for many months, they have had to endure many months of misery, litigation, and what can probably only be described as hell.  It is, if I may say so, a tribute to the birth parents and to the carers that they have sat in court in close proximity and they continue to offer each other support.  I can only express the hope that one day A will realise that she has not two, but four, wonderful adults in her life.

 

 

The carers were asking the Court to deem that they had the right to make an adoption application, or failing that, to grant them leave to make an adoption application. That was the only legal route they had, if they wanted A to remain with them.  The Court was against that, without criticising them for pursuing it.

 

    Mr Momtaz properly recognises that if A was placed with the carers as foster carers rather than prospective adopters, as I find to be the case and he has properly conceded, then he must apply for leave for them to make an adoption application.  He contends that they should be given leave.  In para.30 of his first skeleton argument he identifies the correct principles as follows:

 

  1. The welfare of the child was a relevant, but not the paramount, consideration.
  2. Another relevant consideration is whether the proposed application has a real prospect of success.
  3. He refers me to the judgment of Wilson, LJ, as he was, who indicated his view that the requisite analysis of prospects of success will almost always included the requisite analysis of the welfare of the child.

 

74                 However, I am clear that this does not permit me, and still less does it encourage me, to draw up some sort of balance sheet between the competing debits and credits of these two decent couples.

 

75                 It is of course the case that A has bonded with her carers, who, as I have repeatedly said, have provided her with an unquestionably good level of love and care.  Within the context of her own young world, I have no doubt that A regards the carers as her parents.  Mr Tillyard submits, and I accept, that I have to weigh this against the rest of A’s life.

 

76                 What is the right of this court to terminate A’s right to family life with her family – by which I mean her birth parents and siblings?  The right of the state to interfere in A’s young life does not, in my judgment, exist.  Judge Garland-Thomas has dismissed the care proceedings and there are no longer any public law proceedings on foot.  The carers, as I have said, are temporary foster parents.  So to describe them will appear to them, I know, to be the deepest of insults.  I do not describe them in this way in any pejorative or critical sense, I am merely using the language of the statute to define the legal position: they are foster carers, and the birth parents are the birth parents.

 

77                 Mr Momtaz concluded his excellent written submissions with a short but, I am certain, correct proposition that the applicants, the carers, only want what is best for A.  He then says that they want the court to be able to make an informed and balanced decision as to her welfare.  The fatal flaw with Mr Momtaz’s submissions, in my judgment, is that I do not get to that welfare stage.

 

78                 Mr Momtaz asks why A should be introduced to the care of her biological parents.  In my judgment this is the wrong question.  The correct question is why A should be prevented from being in the care of her biological parents, when this is precisely what her biological parents want.  I do not for a second question the proposition that what the carers want is what is best for A.  The phrase “what is best for” is emotive and implies all sorts of subjective tests.  I am driven to make my conclusions based on the law.  The law is that adoption is a process of last resort unless consent from the parents is forthcoming.  Everyone in this case recognises that the consent of the parents is not forthcoming now, if it ever was.  There is no material evidence on which I could base a finding that the consent of the parents should be dispensed with.  My task is to find whether the carers have a reasonable prospect of success in their adoption application.

 

79                 With the care proceedings having been dismissed, there is no basis on which I could find that the birth parents are other than, to use the language of family lawyers, good enough parents

 

 

And the application was dismissed, meaning that plans were put in place for A to return to the care of her parents

 

81                 I am driven to the conclusion that the carers have no reasonable prospect of success in their adoption application.  Indeed, I am driven to the conclusion that it is bound to fail.  Accordingly, there is no basis on which I can give them permission to make the application.

 

82                 This leads me to the most painful and difficult debate as to how now to reintegrate A into her birth family.  With exceptional kindness, love and understanding, the carers have offered, even in the face of the prospect of losing their application, to do all that they can to help to integrate A into her birth family should they lose this application, as it is evident to them that they now have.  Should they change their mind in relation to this, nobody, least of all me, would criticise them.  If, however, after a period of contemplation following this judgment, they feel able to continue in this offer, then I know that the birth parents and this court would be grateful to them.

 

83                 It may even be, and I express this very sincere hope, that they can play a part in A’s life as she grows from the toddler that she now is into the girl, and the woman, that she will become.  That is, of course, not a matter for this court but a matter for the four individuals who have patiently listened to this case for some three days.

 

84                 In my experience as a judge in the Family Division I have rarely, if ever, seen such decent accommodation by individuals, of the horrible circumstances in which they all find themselves, and I end where I started by thanking all four of them, and express the hope that the goodwill seen by me in this court will continue, not just in the days and weeks to come, but in the years and decades to come.

 

85                 Accordingly, I therefore dismiss the application for leave to bring an adoption application, and I will dismiss the wardship proceedings.

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Relinquished baby, chapter and some verses

I just ended up doing this long summary of the various issues that arise and where to find the answers in case law, so I thought it might be helpful for more general use.  It is too bony to serve as a skeleton, but it might help people as a starting point, because the answers are fairly scattered across a variety of cases.  [If you end up using it and want to give me a name-check, that would be very kind]

Our starting point is that for a genuine relinquished baby, where both parents consent, “nothing else will do” does not apply.

https://suesspiciousminds.com/2016/03/03/an-answer-on-relinquished-babies-and-re-b-s/

 

Baker J in Re JL (2016)

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/440.html

 

 

(2) The decision of the Supreme Court in Re B [2013] UKSC 33 concerned non-consensual adoptions. Where parents have relinquished their baby and expressed a wish that he or she be adopted outside the natural family, the degree of interference with family life rights is less than where the parent-child relationship is severed against the parents’ wishes. The fact that the parents have taken this decision is an important consideration when determining whether the interference is necessary and proportionate. It follows, therefore, that approval of adoption in such cases does not depend on the local authority or court reaching the conclusion that nothing else will do. But the parents’ wishes, although important, are not decisive. They must be evaluated along with all the other factors in the welfare checklist in s.1(4) of the 2002 Act. In all adoption cases – non-consensual and consensual – the local authority is under an obligation to carry out a thorough analysis of the realistic options for the child, as highlighted in Re B-S [2013] EWCA Civ 1146.

 

 

What does that thorough analysis of the realistic options for the child mean for extended family? How far does a Local Authority have to dig into family members?

 

Re C  v XYZ Local Authority 2007   Court of Appeal authority

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2007/1206.html

 

  1. In my judgment, for the reasons given below, when a decision requires to be made about the long-term care of a child, whom a mother wishes to be adopted, there is no duty to make enquiries which it is not in the interests of the child to make, and enquiries are not in the interests of the child simply because they will provide more information about the child’s background: they must genuinely further the prospect of finding a long-term carer for the child without delay. This interpretation does not violate the right to family life. The objective of finding long-term care must be the focus of making any further enquiries and that means the court has to evaluate evidence about those prospects. That did not happen in this case. The judge consequently directed himself according to the wrong principle and his exercise of discretion must be set aside. This court must exercise the discretion afresh.

 

 The LA aren’t OBLIGED to assess and rule out family members, but they should explore them if they represent a genuine prospect of placing the child within the child’s timescales. If a parent is resistant to that, I’d suggest that their views can be respected  (it perhaps gets a bit more complicated if say maternal grandmother is a professional foster carer, then one might think that she is a genuine prospect)

 

And what about a father?

 

A father with PR, you can’t adopt their child without dispensing with their consent, so you ABSOLUTELY HAVE to serve them. No ifs, no buts.

 

What if the father doesn’t have PR – and doesn’t know about the child, and mum doesn’t want you to tell him?

 

X County Council v C 2007  (High Court, Munby J, as he then was)

http://www.bailii.org/ew/cases/EWHC/Fam/2007/1771.html

 

The court has an unfettered discretion, to be exercised having regard to all the circumstances and in a manner compliant with the requirements of the Convention. That said, and where there exists family life within the meaning of article 8 as between the mother and the father, one generally requires “strong countervailing factors” (Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646 at para [48]), “very compelling reasons indeed” (Re C (Adoption: Disclosure to Father) [2005] EWHC 3385 (Fam), [2006] 2 FLR 589, at para [17]) or “cogent and compelling grounds” (Birmingham City Council v S, R and A [2006] EWHC 3065 (Fam), [2007] 1 FLR 1223, at para [73]) to justify the exclusion from the adoption process of an unmarried father without parental responsibility. At the end of the day, however, every case is different and has to be decided having regard to its own unique circumstances.

 

This all assumes, of course, that there is family life. Based on what the mother has told us of her relationship with L’s father, I am sceptical as to whether he can in fact pray in aid article 8 of the Convention. If what she has said is correct, there was almost certainly no family life. But given how little we know, it would not be safe to proceed on that basis. I shall assume, though without deciding, that the father’s rights under article 8 are indeed engaged.

 

Much more significantly, of course, this all assumes that the father’s identity is known, because otherwise there is a potentially insuperable obstacle to engaging him in the process. Can the mother be compelled to reveal his identity? This is the issue at the heart of the present case.

 

In Z County Council v R [2001] 1 FLR 365 at page 366, Holman J speaking of the father said:

 

“There is no power to compel her to reveal the identity and, in the circumstances, all proceedings must necessarily take place without notice or reference to the father or further information about him, than that which the mother has volunteered.”

Dame Elizabeth Butler-Sloss P observed of this in Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646 at para [31] that Holman J “assumed” that there was no power, having heard no argument to the contrary. She herself (see at para [52]) did not have to consider whether there is such power.

 

There may be some room for doubt as to whether, when he said “there is no power,” Holman J was referring to power as a matter of law or power as a matter of pragmatic reality. I doubt that, in strictness, there is as a matter of law no power in the court to order a mother to disclose the identity of her child’s father. After all, the powers of a judge exercising the inherent jurisdiction are theoretically limitless, though in practice there are well recognised limitations on the exercise of the jurisdiction. But whether it is proper, whether it is appropriate and prudent, to exercise such a power, assuming it to exist, whether it is appropriate and prudent to attempt to compel an unwilling mother to disclose the name of her child’s father, is a very different thing.

 

 

 

 

 

 

The fact is that the local authority and the guardian and the court have tried very hard but the mother has made her position perfectly clear. Patient explanations have been given to the mother, both out of court and in court, as to why it is so important from L’s point of view that we learn who her father is. The mother’s position remains as it has been throughout. There is very little prospect – in truth, virtually no prospect – that she is going to volunteer any further information about L’s father.

 

It may be, and the mother is steadfast in the assertion, that there is in fact nothing more to disclose. The local authority and the guardian (and not without grounds I have to say) suspect there is more she could tell us if she chose to.

 

Let me assume that this is so – I emphasise I am making no finding that it is. Where does it take us?

 

In the first place, although one can only speculate as to why the mother should be adopting such a stance (if indeed she is), I would not want to assume that she is acting otherwise than properly by her own lights. We take a different view, but for all I can know she may conscientiously believe that it is not in her daughter’s interests to know anything of her father – and who is to say that she might not be right.

 

But what am I to do? The mother has told me herself in court – not in the witness box on oath but from the well of the court – that there is nothing more she can tell us. There is no reason to believe that she would say anything different were she to be required to go into the witness box and either take the oath or affirm. It would naïve to imagine that someone who on this hypothesis is prepared to lie when addressing a judge direct is suddenly going to volunteer the truth merely because put on her oath.

 

And is it to be suggested, if she maintains her denial, that she should then be cross-examined (and if so with what degree of vigour?) so that the truth can be extracted from her? I confess that I find the idea very disturbing. There is something deeply unattractive and unsettling in the idea that a woman in the mother’s position should be cross-examined in order to compel her to reveal the name of her child’s father. And there is something deeply unattractive and unsettling in the idea that a woman in the mother’s position should be cross-examined (as on this hypothesis would almost inevitably be the case, for how else is cross-examination likely to elicit the relevant information) as to the nature, extent and duration of her relationship with the father. In relation to matters as personal and intimate as this we should be wary of seeking to open windows into people’s souls. And would it in any event be right to subject the mother to prying cross-examination on the (probably dubious) double hypothesis that she is at present not telling the truth but that, if cross-examined, the truth will out?

 

And in any event, where would cross-examination get us? It is possible that the mother would in fact make further disclosures, though I rather doubt it. Suppose, as I think much more likely, that she makes no further disclosures of any significance. I might, for all I know, be left with a powerful impression that she was not telling the truth, but that of itself would get us nowhere. Contempt could not be proved unless I was satisfied to the criminal standard – satisfied so that I was sure; satisfied beyond reasonable doubt – that the mother was telling lies. That, I suspect, is an unlikely outcome. And suppose that I was satisfied to the criminal standard that she was telling lies. Could it seriously be suggested that she should be punished, even sent to prison? Surely not. Punishment would surely be unthinkable.

 

The whole process smacks too much of the Inquisition to be tolerable. And it is not to be justified merely because we believe, however strongly, that what we are doing is being done in the best interests of a child. Here again, as it seems to me, the wise words of Holman J have a powerful resonance.

 

We can reason with someone in the mother’s position. We can seek to persuade. But we should not seek to force or to coerce – and how else in this context could one sensibly characterise the threat of cross-examination or the threat of punishment for contempt. Of course, as Holman J pointed out (see Z County Council v R [2001] 1 FLR 365 at page 375), the matter is not to be determined on the say-so of a mother, but we have to face the realities. And the reality here, in the particular circumstances of this case is, I am quite satisfied, that we have to accept what the mother has told us. It would be wrong to push matters any further. I decline to do so.

 

Mum can be asked, and persuaded to give the name of the father, but if she absolutely refuses, that’s an end to it. The Court are not going to compel her to give evidence, or commit her to prison if she refuses to answer. It would be advisable to record the efforts to explain the benefits to the child of knowing their father’s identity and her responses, but you can’t make her.

 

If the mother does provide the details of the father but asks that he not be contacted

 

the relevant case is

 

M v F [2011] EWCA Civ 273

 

http://www.familylawweek.co.uk/site.aspx?i=ed81462

 

 

  1. Mr Anelay and Mr Squire accept that “the starting point is that [F] should know of the existence of his son and should be able to participate in future care and adoption proceedings” and that “only in an exceptional case should that general rule be overridden”. This realistic position accords with the authorities as I see them. I would observe, in passing, that this approach is also consistent with another strand of authority which includes, notably, the House of Lords decision in Re D (Adoption Reports: Confidentiality) [1996] AC 593. That case was concerned with whether particular evidence (part of a report of the guardian ad litem) should be disclosed to the mother in contested adoption proceedings but the five principles which Lord Mustill identified as governing that decision are illuminating when considering the more fundamental prior question of whether a parent should be informed of the very existence of the proceedings or even that they have a child. The principles are set out at page 615 of the report. All repay consideration. They culminate in the following:

 

“5. Non-disclosure should be the exception and not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”

 

In Re X (Adoption: Confidential Procedure) [2002] EWCA Civ 828 the Court of Appeal added that the interests of the adult parties may also support non-disclosure in an appropriate case.

 

  1. The appellant’s complaint is that the judge did not just look for exceptional circumstances but proceeded on the basis that only a significant physical risk would do and this was to set the test too high.

 

  1. I agree that the authorities do not impose a requirement of significant physical risk. Harm and risk come in many guises and, like Thorpe LJ, I would be anxious about attempting to define what may make a case exceptional enough to justify departing from normal principles. It may be a moot point whether Mostyn J was actually setting himself a test involving significant physical harm or, as Thorpe LJ says, simply emphasising the high hurdle that will have to be overcome before a father who is married to the child’s mother and also living with her is kept in ignorance of the fact that he has a child and deprived of the chance to participate in the legal process relating to that child. Whatever the judge had in mind, however, the balance was inevitably going to come down against M’s applications and his determination is not in any way undermined by this reference of his to a significant physical risk.

 

 

 

  1. However, the judge found, critically, that there was no medical or other expert objective evidence that supported M’s case, that it was “pure supposition” that revealing the child’s existence would affect F as adversely as M suggested it would, and that at most there would be a “degree of upset and confusion” which the judge was hopeful could be mitigated if the revelation was managed appropriately. This was not the sort of harm that would justify keeping F ignorant of his son’s existence and, as I have already observed, her application was bound to be refused.

 

 

Therefore, the Local Authority would need to explore with the mother her reasons for not wanting father to be told, and assess whether those reasons were sufficient to displace the starting point that F should know of the existence of his child and be able to participate in future care and adoption proceedings –  the LA can examine the risk and gravity of the feared harm – but it is not REQUIRED that there be a significant physical risk.

 

In Re JL,  both parents were aware and consenting to the relinquishing of the baby. There must be an element of doubt in a situation where a father does not know of the existence of the baby that it can be treated as a consensual adoption and thus that “nothing else will do” does not apply.

 

From Re X 2007 (as referred to above)

 

Rule 108 of the Family Proceedings (Adoption) Rules 2005 enables a local authority in circumstances such as this to “ask the High Court for directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption.” So whether under the inherent jurisdiction or under that rule I plainly have jurisdiction to give the local authority the relief it seeks.

 

 

This is now  Family Procedure Rules 2010

 

14.21.  Where no proceedings have started an adoption agency or local authority may ask the High Court for directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption.

 

 

So either under the Inherent Jurisdiction OR under FPR 2010 14.21 the Local Authority may ask the High Court for directions and guidance as to whether a father without PR should be told of the plan for the child to be adopted, and that is probably the safest way to resolve that issue.

Bear in mind the decision of Holman J in Re A and B and Rotherham Metropolitan Borough Council 2014

 

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

 

Where a father without PR who knew nothing about the care proceedings or adoption proceedings found out at a later stage and challenged the adoption successfully, with the child being placed with the paternal aunt.  So a prospective adopter taking a child where the father has not been told does do so at some risk that a later challenge by said father might succeed in moving the child.

Right, so until the Courts are asked to deal with a relinquished baby where the child was concieved under a surrogacy arrangement, or an artificial insemination arrangement, or an international surrogacy, we know where we stand.