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Notification of fathers or family in voluntary adoption cases

Posted on February 4, 2020 by suesspiciousminds

 

 

 

The Court of Appeal have given a judgment in three linked cases where a mother wished to arranged for her child to be adopted and the Court had to decide whether or not to inform the father/relatives

The facts and details about the 3 cases are at paragraph 90 onwards of the judgment. In the first, the Judge had decided not to tell the father and the Court of Appeal overturned that, in the second the Court decided in care proceedings not to tell the grandparents of the child’s existence and the Court of Appeal upheld that, and in the third the Judge decided that the father should be told and the Court of Appeal upheld that. Three very different sets of facts and three different outcomes, but helpfully the Court of Appeal analyse all of the relevant law and distil from it the principles and good practice to be applied in such cases.

 

A, B And C (Adoption: Notification of Fathers And Relatives) [2020] EWCA Civ 41 (29 January 2020)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2020/41.html

 

The new bit of law in this case is the Court of Appeal decision that when DECIDING whether or not a father or relative should be notified, the child’s welfare IS NOT the Court’s paramount consideration (or the Local Authority’s when they are making the decision). The Court is not deciding whether the child should be adopted (when welfare IS paramount) but who should or should not be told.

 

 

 

82.As noted above, there is uncertainty about whether what I have described as the core principles (welfare paramountcy, the prejudicial effect of delay and the welfare checklists) apply directly to a decision about notifying a father or relatives about the existence of a child or of proceedings. In a sense, not much turns on this: child welfare, prompt decision-making and a comprehensive review of all relevant factors are central to the notification decision, regardless of whether they are directly mandated by statute. Nevertheless, decision-makers are entitled to know whether their decision should place child welfare above everything else or not, and a correct formulation of the principles reduces the risk of error in decisions at the margins.

 

 

83.In the light of the observations in Re C v XYZ County Council, it is not surprising that a number of the later first instance decisions recite that the core provisions are engaged, or that a number of the parties before us so submitted. However, after closer examination, I am satisfied that the decision about notification does not directly engage these provisions. My reasons are these:

 

 

 

  1. So far as the CA 1989 is concerned, the decision is not one “relating to the upbringing of a child”. It is a decision about who should be consulted about such a decision.

 

  1. The same applies to the ACA 2002. The decision for the local authority and the court is not one “relating to the adoption of a child”, but a decision about who should be consulted about such a decision.

 

  1. The terms of s.1(7) ACA 2002, which apply only to decisions by the court, do not lead to a different conclusion. The subsection is not without difficulty – see Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616; [2007] 2 FLR 1069 at [19-24] – and I cite it again for convenience:

 

 

“In this section, “coming to a decision relating to the adoption of a child”, in relation to a court, includes—

 

 

(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 or 51A (or the revocation or variation of such an order),

 

 

(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,

 

 

but does not include coming to a decision about granting leave in any other circumstances.”

 

 

Although widely drafted, sub. (a) does not cover the paradigm situation where a Part 19 application has been made, nor is that an application for any form of leave as mentioned in sub. (b). And even if there are proceedings of the kind mentioned in sub. (a), it cannot properly be said that every case-management decision within those proceedings is one to which welfare paramountcy applies. Such decisions are more apt for the application of the over-riding objective in Part 1 of the FPR 2010, which requires the court to deal with cases justly, having regard to any welfare issues involved. In my view the correct interpretation of the expression “coming to a decision” in s.1(7) ACA 2002 means coming to a decision about the substance of the application, whether it be an adoption order, a placement order, or a contact order. It does not include coming to a decision about who should and should not be informed of the existence of the child or of the proceedings themselves.

 

  1. This conclusion is consistent with the established distinction between decisions that are welfare-paramount and those that are not. This is made explicit in the cases reviewed at paras. 48-50 above and the corresponding silence in the entire line of authority preceding Re C v XYZ County Council is equally significant. To take one example, the decision of the House of Lords in Re D [1996] about withholding material in confidential reports did not refer at all to the equivalent provision to s.1 ACA 2002 in the Adoption Act 1976 (which by s.6 placed a duty on the court and the local authority to give first consideration to the need to safeguard and promote the welfare of the child). Likewise, in Re X [2002] this court determined the issue of whether the parents should be told that the foster parents were adopting the children by striking a balance between the competing interests, not by prioritising child welfare. This approach continued after the enactment of the ACA 2002, as can be seen in the comprehensive survey of the law conducted by Munby J in Re L [2007], which makes no reference to s.1 of the Act, to welfare-paramountcy or to the welfare checklist.

 

  1. Re C v XYZ County Council, while plainly correctly decided, is not binding authority on this issue, for the reasons I have given above.

 

  1. The later decision of this court in Re A [2011] does not support a welfare-paramountcy test.

 

  1. Lastly, there is no reported decision of which I am aware in which the outcome has been dictated by the court finding that the welfare of the child trumps all other considerations; instead, there is an unbroken body of case law in which the outcome has been determined by a balancing of the rights and interests of all the individuals concerned.

84.For these reasons I conclude that while child welfare, prompt decision-making and a comprehensive review of every relevant factor, including those mentioned in the checklists, are all central to the notification decision, the decision is not one that is formally governed by the provisions of s.1 of the CA 1989 or of the ACA 2002 and the welfare of the child is not the paramount consideration of the local authority and the court in this context.

 

The Court of Appeal quote with approval the joint ACDS /CAFCASS procedure in relation to relinquished children. You can find that in a drop down menu here, https://www.cafcass.gov.uk/about-cafcass/policies/ but thankfully the Court of Appeal set out the key aspects

 

Urgency and thoroughness of procedure

86.A local authority, faced with a baby that may require adoption, either because a mother wishes to relinquish the baby for adoption or because there are proceedings with a plan for adoption, will be acutely aware of the need for a speedy decision. Where the mother requests confidentiality, it will need to decide at a very early stage whether an application to court should be made to determine whether or not the putative father or relatives should be informed and consulted. There will be cases where, applying the principles summarised in this judgment, the local authority can be very clear that no application is required and planning for placement on the basis of the mother’s consent can proceed. But in any case that is less clear-cut, an application should be issued so that problems concerning the lack of notification do not arise when adoption proceedings are later issued. In relation to a putative father, that application will be under Part 19 unless issues of significant harm have made it necessary to issue proceedings for a care or placement order; I would suggest that an equivalent application under the inherent jurisdiction can be made where a local authority has doubts about notification of a close relative.

 

 

87.I have referred already to the Cafcass/ADCS protocol, which has been taken up by a number of local authorities. In the proceedings before us, which involved three local authorities, the parties collectively filed an agreed statement of the steps that will need to be taken by the local authority in cases such as these. It is not for this court to determine local authority procedures but I record the parties’ agreement for the help that it may give to those facing these situations.

“1. A local authority should take these steps as soon as it is notified that a mother, or mother and father, are expressing a wish that an infant is placed for adoption without notification to either the child’s father or extended family:

 

(i) The local authority files should be checked for background information about the mother and extended family and for contacts with other relevant agencies, such as health and police.

(ii) The allocated social worker, ideally accompanied by an adoption worker, should undertake at least one visit but preferably a series of visits to the mother, or mother and father, if she/they are willing, to discuss:-

◦The decision to place the child for adoption.

◦The reasons for not notifying the child’s father, or extended family, where possible gathering details about the father’s background and that of the family.

◦The mother’s background and information about her family.

◦Any cultural issues and how they have affected the decision made by the mother, or mother and father.

◦The implications of adoption for the child

◦The legal process required to achieve adoption

◦Other possible options for the care of the child

◦The adoption counselling service and how to access it

◦Whether the mother, or mother and father, require any other form of support and how that might be achieved

No assurance should be offered to a parent during the social work visit/s that notice of the birth of the child will be withheld from the father and/or extended family members.

 

(iii) The mother, or mother and father, must be provided with written information, where available, about the process and adoption counselling services.

 

(iv) Where the father is identified, the local authority should check its records for any background information known about him.

 

(v) The placement team must be informed immediately and it should begin the process of finding a suitable placement, preferably with ‘foster for adoption’ / early permanence carers.

(vi) CAFCASS must be informed as soon as the local authority is notified so that it can allocate a worker to the case for the purpose of meeting with the mother, or mother and father, to discuss and where appropriate take consent for adoption.

 

 

 

  1. The local authority should critically examine all information that it receives and, in circumstances where the mother states the identity of the father is unknown to her, the local authority should carefully consider her statement and her explanation to consider whether there is any basis for considering that the statement might be false. If the local authority does form that view, it should consider if there is any reasonable way by which the identity of the birth father could be established.

 

 

 

  1. The social worker should, as a matter of urgency, seek legal advice to ascertain whether the matter should be placed before the court in all cases where:

(i) the mother opposes notification to the father, if identified;

(ii) the mother knows the identity of the father but is unwilling to disclose this information;

(iii) the local authority has reason to doubt the reliability of the mother’s claim that the identity of the father is unknown, or

(iv) the mother is opposed to any notification to her family or the father’s family.

 

  1. The legal advisors will need to consider and advise as a matter of urgency whether a Part 19 application or other proceedings should be issued.

 

 

 

  1. If a decision is made that a Part 19 application is not required, the local authority should immediately notify CAFCASS, and provide detailed reasons for that decision, to allow CAFCASS to consider this information prior to meeting with the mother, or mother and father, when discussing consent under section 19 or for any later adoption application.

 

 

 

  1. As non-means/non-merits tested public funding is unavailable to parents for a Part 19 application (and emergency funding may be difficult to access on an emergency basis even if merits and means tests are met), a local authority should provide the mother, or mother an father, with advice concerning access to independent legal advice and how that might be obtained and funded (including by the local authority considering the funding of such advice). A list of specialist solicitors available in the area should be provided.

 

 

 

  1. Where an application is to be made, the social worker should prepare a detailed statement setting out the information gathered and providing the local authority’s position regarding the wish of the mother, or mother and father, to relinquish the child without notifying the father and/or extended family members.”

88.In cases where an application to the court is issued, the court should be equally alert to the need for urgency, bearing in mind that time has already passed in preparation for the application and the hearing. The following matters will require attention:

 

 

 

  1. Identity of judge: If the application is under Part 19, it must be heard in the High Court and appropriate listing arrangements must be made. Upon issue, the application should immediately be referred to the DFJ for consultation with the FDLJ as to whether the application should be allocated to a High Court Judge or a section 9 Deputy High Court judge.

 

  1. Identity of parties: (a) It is not mandatory for a respondent to be named in the application, although it will usually be appropriate for the mother to be identified as a respondent; (b) directions should be given on issue joining the child as a party and appointing a CAFCASS officer to act as Children’s Guardian in the application; (c) neither a father (with or without parental responsibility) nor members of the wider maternal/paternal family are to be served with or notified of the application or provided with any of the evidence filed in support of an application.

 

  1. Case management: The application should be listed for an urgent CMH, ideally attended by the CAFCASS officer. At the hearing, consideration should be given to the need for any further evidence, the filing of the Guardian’s analysis and recommendations, the filing of written submissions and the fixing of an early date for the court to make a decision.

 

  1. Receiving the mother’s account: It is a matter for the court as to whether it should require written or oral evidence from the mother. Given the importance of the issue, the court will normally be assisted by a statement from the mother, whether or not she gives oral evidence, rather than relying entirely upon evidence from the local authority at second hand.

 

  1. The listing of the hearing of the application should allow time for whatever evidence and argument may be necessary, and for a reasoned judgment to be given. Even allowing for the pressure on court lists, these decisions require prioritisation.

 

 

The Court of Appeal then helpfully summarised the law as derived from their very careful analysis of the relevant authorities

 

89.The principles governing decisions (by local authorities as adoption agencies or by the court) as to whether a putative father or a relative should be informed of the existence of a child who might be adopted can be summarised in this way.

 

 

 

  1. The law allows for ‘fast-track’ adoption with the consent of all those with parental responsibility, so in some cases the mother alone. Where she opposes notification being given to the child’s father or relatives her right to respect for her private life is engaged and can only be infringed where it is necessary to do so to protect the interests of others.

 

  1. The profound importance of the adoption decision for the child and potentially for other family members is clearly capable of supplying a justification for overriding the mother’s request. Whether it does so will depend upon the individual circumstances of the case.

 

  1. The decision should be prioritised and the process characterised by urgency and thoroughness.

 

  1. The decision-maker’s first task is to establish the facts as clearly as possible, mindful of the often limited and one-sided nature of the information available. The confidential relinquishment of a child for adoption is an unusual event and the reasons for it must be respectfully scrutinised so that the interests of others are protected. In fairness to those other individuals, the account that is given by the person seeking confidentiality cannot be taken at face value. All information that can be discovered without compromising confidentiality should therefore be gathered and a first-hand account from the person seeking confidentiality will normally be sought. The investigation should enable broad conclusions to be drawn about the relative weight to be given to the factors that must inform the decision.

 

  1. Once the facts have been investigated the task is to strike a fair balance between the various interests involved. The welfare of the child is an important factor but it is not the paramount consideration.

 

  1. There is no single test for distinguishing between cases in which notification should and should not be given but the case law shows that these factors will be relevant when reaching a decision:

 

 

(1) Parental responsibility. The fact that a father has parental responsibility by marriage or otherwise entitles him to give or withhold consent to adoption and gives him automatic party status in any proceedings that might lead to adoption. Compelling reasons are therefore required before the withholding of notification can be justified.

 

 

(2) Article 8 rights. Whether the father, married or unmarried, or the relative have an established or potential family life with the mother or the child, the right to a fair hearing is engaged and strong reasons are required before the withholding of notification can be justified.

 

 

(3) The substance of the relationships. Aside from the presence or absence of parental responsibility and of family life rights, an assessment must be made of the substance of the relationship between the parents, the circumstances of the conception, and the significance of relatives. The purpose is to ensure that those who are necessarily silent are given a notional voice so as to identify the possible strengths and weaknesses of any argument that they might make. Put another way, with what degree of objective justification might such a person complain if they later discovered they had been excluded from the decision? The answer will differ as between a father with whom the mother has had a fleeting encounter and one with whom she has had a substantial relationship, and as between members of the extended family who are close to the parents and those who are more distant.

 

 

(4) The likelihood of a family placement being a realistic alternative to adoption. This is of particular importance to the child’s lifelong welfare as it may determine whether or not adoption is necessary. An objective view, going beyond the say-so of the person seeking confidentiality, should be taken about whether a family member may or may not be a potential carer. Where a family placement is unlikely to be worth investigating or where notification may cause significant harm to those notified, this factor will speak in favour of maintaining confidentiality; anything less than that and it will point the other way.

 

 

(5) The physical, psychological or social impact on the mother or on others of notification being given. Where this would be severe, for example because of fear arising from rape or violence, or because of possible consequences such as ostracism or family breakdown, or because of significant mental health vulnerability, these must weigh heavily in the balancing exercise. On the other hand, excessive weight should not be given to short term difficulties and to less serious situations involving embarrassment or social unpleasantness, otherwise the mother’s wish would always prevail at the expense of other interests.

 

 

(6) Cultural and religious factors. The conception and concealed pregnancy may give rise to particular difficulties in some cultural and religious contexts. These may enhance the risks of notification, but they may also mean that the possibility of maintaining the birth tie through a family placement is of particular importance for the child.

 

 

(7) The availability and durability of the confidential information. Notification can only take place if there is someone to notify. In cases where a mother declines to identify a father she may face persuasion, if that is thought appropriate, but she cannot be coerced. In some cases the available information may mean that the father is identifiable, and maternal relatives may also be identifiable. The extent to which identifying information is pursued is a matter of judgement. Conversely, there will be cases where it is necessary to consider whether any confidentiality is likely to endure. In the modern world secrets are increasingly difficult to keep and the consequences, particularly for the child and any prospective adopters, of the child’s existence being concealed but becoming known to family members later on, sometimes as a result of disclosure by the person seeking confidentiality, should be borne in mind.

 

 

(8) The impact of delay. A decision to apply to court and thereafter any decision to notify will inevitably postpone to some extent the time when the child’s permanent placement can be confirmed. In most cases, the importance of the issues means that the delay cannot be a predominant factor. There may however be circumstances where delay would have particularly damaging consequences for the mother or for the child; for example, it would undoubtedly need to be taken into account if it would lead to the withdrawal of the child’s established carers or to the loss of an especially suitable adoptive placement.

 

 

(9) Any other relevant matters. The list of relevant factors is not closed. Mothers may have many reasons for wishing to maintain confidentiality and there may be a wide range of implications for the child, the father and for other relatives. All relevant matters must be considered.

 

  1. It has rightly been said that the maintenance of confidentiality is exceptional, and highly exceptional where a father has parental responsibility or where there is family life under Article 8. However exceptionality is not in itself a test or a short cut; rather it is a reflection of the fact that the profound significance of adoption for the child and considerations of fairness to others means that the balance will often fall in favour of notification. But the decision on whether confidentiality should be maintained can only be made by striking a fair balance between the factors that are present in the individual case.

 

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Relinquished baby, chapter and some verses

Posted on March 8, 2016 by suesspiciousminds

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.

 

 

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An answer on relinquished babies and Re B-S

Posted on March 3, 2016 by suesspiciousminds

 

FINALLY! An answer to whether Re B-S and Re B apply to relinquished babies. Also an answer to mind-blowingly tricky stuff about whether a foreign parent who has a baby in England can relinquish without their home country being told, and how the heck to do a foreign placement with a relinquished baby. It is all here.

 

 

  • 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. Instead, they must approach the case by applying s.1 of the 2002 Act as set out above, making sure that they give paramount consideration to the child’s welfare throughout his or her life and allocating such weight as they consider appropriate to the comprehensive list of factors in s.1(4) In such cases, the local authority and the court must consider the parents’ wishes that their child be adopted in the context of all of those factors, including the child’s background, the likely effect on the child of having ceased to be a member of the original family and the ability and willingness of any of the child’s relatives to meet the child’s needs. As in the case of step-parent adoptions, the manner in which the statutory provisions are applied will depend upon the facts of each case and the assessment of proportionality.
  • It follows therefore that 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. Indeed, a thorough analysis of all the realistic options should surely be carried out in all cases where a local authority is making plans for a child’s future.

 

The analysis of the realistic options applies, but the test of “nothing else will do” does not. Just in case it wasn’t clear enough up there, the Judge says it again.

 

(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.

 

[Also, the Court ruled that with a child of foreign nationals who are relinquishing their baby for adoption, there is NO duty on the Local Authority – or the Court when later considering an adoption application to notify the foreign consulate in accordance with the Vienna Convention. ALTHOUGH, you now need to make sure that the Court doesn’t appoint a Guardian at the adoption hearing, or the Vienna Convention duties do arise. Damn.]

 

(3) Article 36 of the Vienna Convention on Consular Relations 1963 does not apply in cases where a child has been relinquished for adoption because the child in those circumstances is not being “detained”. Following the decisions in Re E [2014] EWHC 6 (Fam) and Re CB [2015] EWCA Civ 888, Article 37 of the Convention applies where a guardian is appointed in placement order or adoption proceedings.

 

 

Baker J in Re JL (2016)

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

 

He goes on to outline the five options that a Local Authority has when parents relinquish their baby for adoption  (agree to have their baby adopted, in plain English)

 

 

  • Having carried out its assessment, the local authority will reach one of the following conclusions.

 

(1) It may conclude that adoption in this country is in the best interests of the child. In such circumstances, it can proceed formally to obtain the parents’ consent. If consent is given in the prescribed way, the local authority becomes “authorised” to place the child for adoption under s.19. As I read s. 22, if the local authority is authorised under s.19, it is not obliged under s.22(1) to apply for a placement order as the condition in s.22(1)(b) is not satisfied and, unless the child is subject to a care order or of ongoing care proceedings, it has no power to apply for an order under s.22(2) or (3). In such circumstances, therefore, it is neither necessary nor possible for the local authority to apply for a placement order.

(2) It may conclude that the child should be placed with family members or fostered in this country. In such circumstances, it may place the child under s.20 provided that the provisions of that section, and the other provisions of Part III of the Children Act 1989 and the associated regulations, are satisfied. In particular, under s.20(7) it may not arrange such accommodation if a parent with parental responsibility is able and willing to accommodate or arrange accommodation for the child themselves objects to the local authority’s proposal and in the absence of consent must apply for a care order. S. 20 has been considered in a number of cases, most recently by the Court of Appeal in Re N, supra, (see in particular the judgment of Sir James Munby P at paragraphs 157 to 171). Although both JL and AO are at present accommodated under s.20, that jurisprudence does not impinge on the issues in either of the cases before me and need not be considered further in this judgment.

(3) It may decide to place the child with family members in the country of origin. If the parents give their consent, it may proceed to arrange the placement without court approval. If the child is subject to a care order, however, it may only do so with the approval of the court: Children Act 1989, Schedule 2 para 19(1) and (2).

(4) It may decide that the child should be placed with prospective adopters that have been identified in the country of origin. In those circumstances, the procedure under s.84 may be available, and if so schedule 2 para 19 does not apply: schedule 2 para 19(9).

(5) It may decide to send the child to the foreign country so that the authorities there can arrange the adoption. This last course is the option which the local authority considers to be best in AO’s case. In those circumstances, s.85 will prevent the local authority sending the child to the foreign country unless the child is subject to a care order and the court makes an order under Schedule 2 para 19.

Number 3 is obviously the important one with relinquished babies.  In care proceedings, parents get to put forward family members who they wish to be assessed as potential parents. What happens with parents of a relinquished baby if the Local Authority WANT to assess family members, or need to rule them out, but the parents want privacy and don’t want them approached?

Well, the Court of Appeal had previously ruled  in Re C  v XYZ Local Authority 2007  http://www.familylawweek.co.uk/site.aspx?i=ed1147  that :-

3. 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.

It has been a bit ambiguous as to whether this still stands, and it would not if the Court rule that relinquished adoptions are subject to the “nothing else will do” test of Re B. Baker J has cleared up that they aren’t, so Re C v XYZ 2007 remains the law for relinquished children and assessing wider family – only if the enquiries genuinely further the prospect of finding a long-term carer without delay.  The LA aren’t obliged to rule out individual members of the family, just to explore those who would satisfy that test.  Re C v XYZ seems to me to be completely compatible with Baker J’s strictures here that the LA must consider the ‘realistic options’ for the child, even where the parents have agreed or requested adoption.

 

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Relinquishing for adoption and nothing else will do

Posted on August 15, 2014 by suesspiciousminds

This is a High Court case, decided in April, but the report of judgment has only recently come out. I’m grateful to Celtic Knot for ensuring that it came to my attention
I touched on the (at that time unresolved) issue of whether the raft of jurisprudence on ‘non-consensual adoptions’ also applied to step-parent adoptions and relinquished babies where the mother was giving the child up for adoption but the father was not identified/told.

https://suesspiciousminds.com/2014/04/12/step-parent-adoption-telling-the-birth-father/
and this High Court case Coventry City Council and A 2014 deals with the relinquished adoption issue (and my next blog post will deal with the Court of Appeal’s decision on step-parent adoptions)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/2033.html
If you want the Too Long; Didn’t Read version – it is that I would be very cautious about relinquished adoptions particularly if there is any international element. If either parent is from another EU country, I would strongly urge you to read the judgment in Coventry CC and A. I suspect that it will make ‘relinquished adoptions’ considerably more protracted, complicated and expensive.
This case took nearly a year to resolve (with a baby that mother wanted to give up for adoption – so twice as long as fully contested care proceedings are intended to take)

Part of the reason why is that the mother was Romanian, and the High Court embarked on a process of notifying the Romanian authorities about the existence of the child and the potential order that would be made in the UK courts.

Let’s look at what mum had to say about her extended family

The hospital was able to contact the mother through her friend, Z, via a mobile phone and a meeting was arranged with the mother to attend the hospital on 7th June. Initially the mother failed to return but, ultimately, after some persuasion, she did so with her friend Z. She was spoken with through an interpreter speaking Romanian. At this meeting she gave her baby a name after some prompting with the social workers and held the baby for the first time showing some emotion in doing so. The mother gave information about her and her baby’s background. She said that the father was Romanian Roma but she was herself Romanian. She refused to provide the father’s name. She said that her family were not aware of her pregnancy. She had not told them about it or her relationship with the father and she had concealed the pregnancy from them. She said that her family would not approve of the relationship with the father as he was Roma and her mother would disown her if she knew. She wanted the baby to be adopted. She intended to return to Romania as soon as possible after she received her new travel documents.

She said she was from a named village in Romania, that she had two other children residing there, a son aged nine and a daughter aged ten and they were being cared for by their maternal grandparents. She had no money to support a baby. She said the father was aware of the pregnancy but was not interested and he was not aware that the baby had been born. She had come here on holiday to see her friend, Z, who came from the same area as the maternal grandparents. She had not told Z about the pregnancy until her waters broke. She said she had no fixed abode, she moved between the homes of various friends and had been evicted the evening before and was at that time staying with a friend of Z.

That seems, to me, to be a very clear message that the mother did not want her relatives approached or told of the existence of the baby.

Unfortunately, mother did not help herself because she didn’t attend the appointment with a CAFCASS officer to sign the adoption forms. Nor did she attend the second such appointment, and then she vanished.

The baby was thus not, in law, relinquished. Mother had agreed to give the baby up for adoption but had not signed the paperwork that would be a vital part of the process. That meant that rather than being a relinquished baby adoption, this had to go into care proceedings.

And, the case having gone into care proceedings, efforts had to be made to find and serve the mother.

[HUGE LESSON here – if you are dealing with a mother who wants to relinquish her baby, it is vital that she is made to understand that not filling out the forms is going to make life much worse for her. Fine to decide ‘I don’t want to sign them because I want the child back’, but ‘I don’t want to sign the forms because I want to stop thinking about this’ is just going to make things much much worse]

It made things much much worse for this mother here, because a process server was sent out to look for her in a Romanian village near Bucharest

The process server met with the mother’s own mother who is Romanian, who told him she is looking after the children at the family home, that the mother was not in Romania, she had left a few months ago to go to the United Kingdom. She said that the family believed she was working as a prostitute in the United Kingdom and recently had had problems and had been in hospital. The process server was unable to gain any further information but was able to say that the address in Coventry, which the mother had given to the local authority, did not exist.
In the second report, dated 30th November, the process server described the village as being small, about 100 kilometres from Bucharest, with “a majority gypsy population very poor and simple peoples.” He met with the mother’s own mother again who was shown a photograph of the mother. Initially she denied recognising the mother but later produced a copy of the mother’s ID card with a photograph of the mother. Whilst there, a niece of the mother identified the photograph as the mother and a sister of the mother did so as well. The grandmother then returned with a copy of the mother’s ID card and was able to confirm that the photograph with the process server was that of the mother. The process server then showed a photograph of the mother to a village policeman who identified it as that of the mother and said that she had been registered as missing but had returned to the address and was declared not missing. It seems he thought that she was probably in the United Kingdom and said that she did not have a relationship with her family. The local authority have been unable to trace the mother and has no information as to the father’s identity or whereabouts.

Remember, of course, that this mother did not want her family to know anything about the baby or to become involved. So that worked out marvellously for her. (I also dread to think how much Coventry had to pay for the Romanian equivalent of Jim Rockford to go out flashing this photograph of the mother around, including showing it to a village policeman)
The final upshot though, was that the mother was not found, and the care case thus proceeded in the absence of the mother, or a father.

What then happened was that the Court caused the Romanian authorities to be informed of the case. It took a while to get any response out of them, but once they started to respond, they got highly responsive, ultimately saying that they wanted the case transferred to Romania and were wholly opposed to a child of Romanian parents to be adopted, even where the mother herself was not opposing it.

 

the Romanian authorities have been informed as to the existence of A and the existence of these proceedings and the care plan for adoption. The care proceedings were issued on 9th August last year and the application for the placement order was on 14th October. These applications were transferred from the Coventry Family Proceedings Court to the Coventry County Court on 18th November 2013 due to the complexity of the international aspects. On 20th November her Honour Judge Watson directed that the Romanian central authority be invited to attend the next hearing on 4th December. On 4th December, although the Romanian central authority had been notified, no representatives attended but on 2nd December the Romanian Directorate for International Law and Judicial Cooperation wrote saying that the correspondence had been forwarded to the child protection directorate and that a response was awaited.
On 4th December Judge Watson invited the Romanian central authority to write to the local authority by 23rd December informing the local authority of its position concerning the baby and the substance of any representation or applications that they were intending to make to the court. A further invitation was made to the Romanian central authority to attend at the next hearing on 13th January, it being noted that the court may make such an order on that date in the absence of any representation and the court considered that sufficient notice had been given. Judge Watson also ordered that the local authority do have permission to disclose this order and other relevant documents suitably redacted to the Romanian central authority before forwarding it to the Romanian child protection directorate that a warning of the confidentiality of the court proceedings would need to be maintained until further order.
The local authority was ordered to send a copy of the order to the Romanian central authority under cover of a letter explaining that their attendance is requested at the next hearing when final orders may be made in their absence. Judge Watson ordered that the Romanian authorities should not disclose the birth of the baby to the maternal family without the permission of the court. She gave leave to the Romanian central authority to apply to discharge parts of the order.
The matter was restored to her Honour Judge Watson on 13th January. The Romanian central authority had been invited but made no representations and was not in attendance on that day. However, the court read a letter from the Romanian directorate for International Law and Judicial Cooperation and another letter from the director of the Romanian child protection department and noted that the child protection department was content not to inform the maternal family about the birth of the baby and the judicial proceedings whilst A’s best interests were considered.
The child protection department does not consider the adoption of the child as justifiable and that it seeks the return of the child to Romania. Various directions were made and the matter was transferred to Mrs Justice King to be heard in the Royal Courts of Justice in London on 17th January 2014. The Romanian authorities were invited to make representations to Mrs Justice King. It was noted that such attendance is essential if the court is to consider the Romanian authority’s opposition to the local authority’s application for care and placement orders. By paragraph 4 of the order if the Romanian authorities wish to oppose the local authority’s application for care and placement orders they are invited by the court by 16th January to file and serve a document setting out their case in detail whether questions regarding the child’s welfare are subject to determination under the United Kingdom or the Romanian law; however, the courts in England have powers of jurisdiction to determine the questions relating to the child’s welfare and any points they make in opposition to the local authority’s plans for the child, any points they wish to make in support of a plan for the child to be returned to Romania, and the plan they propose for the child’s care including how her medical needs would be met. The Romanian central authority was to be served forthwith.
The letter of 9th January which was before Judge Watson came from the Directorate of International Law and Judicial Cooperation addressed to Coventry City Council, “Please find attached letter of response from the child protection directorate concerning the child. The Romanian child protection considers that the international adoption of a child is not justified as Romanian national law provides specific and limited situations when international adoption can take place. The child protection directorate requests repatriation of the child to Romania where the local child protection agency will be available to make the necessary investigations and to adopt protective measures for the child.”
The directorate also wrote on 16th January again to the local authority, “Further to your message of 13th January, we are sending you attached the answer provided by the child protection directorate dated 15th January. With regard to the question raised by the Coventry County Court on the question of jurisdiction, it is our opinion that Article 13 of the EC council regulations number 2201 of 2003 is applicable, that the Royal Courts of Justice could also take into consideration and apply the provisions of Article 15 of Brussels II (Revised). As to the question of consent and participation by the Romanian representative at the hearing on 17th January our office cannot confirm that at this time.”
The letter that was enclosed came from the Directorate of Child Protection which is dated 15th January; “Further to your request for an opinion regarding the case of A, we believe that we should make the clarifications below. As you are aware from the information provided by the British authorities, the Romanian side has been asked to observe confidentiality about the situation of the child and the identity of the parents. It has been mentioned in our previous correspondence that there is a complete provision for Romanian local authorities to support and assume repatriation of the child considering that she is a Romanian national. However, given that the British authorities have only provided us with extremely brief information about the situation, we believe that their request dated 4th January that a series of documents should be made available by the 16th which should present a proposed plan for the child including the manner in which her medical situation would be handled and any other arguments meant to challenge the decisions made by the local authority that the child is adopted are unrealistic considering that any serious assessment must be based on documents that affect both the social background and they affect the medical condition of the child and the family environment of the natural extended family of the child in order to make a substantiated decision about setting up a measure of special protection. Under the circumstances in relation to the recent request by the British court we wish to mention that our institution upholds its opinion about the Romanian local authorities assuming the responsibility of repatriating this child to Romania and that the specialised documents will be prepared by the general directorate of social assistance for child protection from the country of domicile after the British Social Services provide us with the documents that describe the current situation. Whether a representative of the Romanian Embassy will appear on 17th January, please be advised that we cannot issue an opinion about the designation of the representative who will participate.” Then it was signed off

 

Yes, I have left out of my opening remarks that this case is going to involve Brussels II, but sadly it does. I just didn’t want to put you off reading it at the outset, apologies for my deception.
It gets worse, because then the Romanian authorities began to get cold feet about whether the mother was in fact Romanian, and that debate went on for ages and ages. Their position was that IF the baby was Romanian, then they would want the case and would oppose adoption, but in the absence of documentary proof about the mother’s nationality they wanted no part of it (and they weren’t accepting the process server’s detective work at finding family members and a policeman who confirmed that mother was from a village in Romania)

On 13th March the child protection department wrote the following: “Taking into consideration that child citizenship is still to be clarified, we would like to state that if the court would confirm the child is a Romanian citizen, then the Romanian local authorities from the county where the child’s natural family has residence would issue all the required documentation to return the child to Romania specifying also detailed measures and individual protection plan under which the child’s best interests would be protected. We would like to mention that repatriation procedure as well as the background checks are carried out by the Romanian authorities would be based on the government decision number 1443 of 2004 regarding procedures for the repatriation of unaccompanied children providing the child’s best interests would be protected. If, following the assessment made in relation to the child’s extended family or natural parents, it would be decided that the family re-integration is not an option, then a Romanian competent authority would recommend the child be placed in a foster care based on a court order. The child’s placement would be done by the panel for child protection in the county of residence thought necessary by the court depending on the evidence presented if special protection measures are necessary. Taking into consideration the child’s age, the foster care placement would be the solution to be considered by the Romanian authority as under the current Romanian law, a child under the age of two cannot be placed in a residential institution (orphanage). We would like to emphasise that for the moment the Romanian authorities have been unable to identify the child’s extended family members due to the confidentiality of this case. If the citizenship of the child and the mother are established as Romanian then the Romanian authorities will assume true responsibility for its repatriation be handling the case under Romanian laws.”
That was the final word from the Romanian authorities and the note that sets out the general picture, that letter does not give a timescale as to what would be done, when it would be done and when the child could be placed. There is a lacuna as to what actually would be done in fact and the timescale was not set out.

The Court had to consider the factual matrix to decide whether this baby was habitually resident in England, thus giving the English Court jurisdiction, and decided that she was.

I accept that it is likely that the mother and the little girl are both Romanian. I cannot say that I am one hundred per cent certain but the evidence firmly indicates that likelihood. The mother seemed to speak Romanian as her first language. She talked about Romania and said she was returning to Romania. It seems that we have located her family. I am not making a clear finding of that because all I can do is to look at the evidence before me and the mother is not here. The little girl was born here and the mother wanted her to be adopted here. There was no pressure on her to reach this conclusion. It was her conclusion and she gave her reasons. She said that she had no money to support the child; that her family did not approve of her relationship with the father, that they would disown her and they would not support her and that the father himself was not interested. She herself had concealed the pregnancy from her family and from her friend, Z. The mother has effectively abandoned A to her fate here. She wanted her to be adopted in the United Kingdom, hoping that she would find a good home.
Effectively the mother has left her daughter. Since the birth, A has been here, she has never left this country, she has been in hospital for good reasons after her birth and then when she was ill in July. She only left hospital in September when she was placed with her foster carers and she has not left their care since. She looks on them as her carers, as her family, their home is her home, she knows nothing else, she is only ten months old but she is comfortable, seemingly happy and settled in that environment. If she has a language, it is English. It is not Romanian. No doubt she is familiar with the sound of English. She may now be understanding a lot of things, I know not, but if she has a language it is English. Her culture is that of her carers. The environment in which she lives is that of her carers. She has accessed the United Kingdom’s health system. She moves around her carers’ home area with her carers. She will know their friends and her environment is that of her carers who are British, living somewhere in this country, although I am not sure where; that is where she is and that is her environment. She has had no contact with her mother since 7th June when she was still very, very small. It is clear to me that there is a distinct level of integration for this little girl in the social and family environment in this country with these carers. She has no connection from a practical day to day point of view with Romania. It is clear to me that she is habitually resident here and I make that finding.

In that sense, there is no need for me to consider Article 13 and I have jurisdiction because she is habitually resident here but if I am wrong on that, Article 13 would kick in. Where a child’s habitual residence cannot be established and jurisdiction cannot be determined, the courts of the Member State where the child is present shall have jurisdiction. I am saying that Article 8 applies, this child is habitually resident in this country and by that means I have jurisdiction
The next issue, then, was whether the appropriate venue for decisions to be made was England or Romania, applying article 15 of Brussels II

The Court decided not to transfer the proceedings to Romania (and if you are some sort of Brussels II addict, then the specific paragraphs are 44-50.

The NEXT issue was whether there should be an approach made to the extended family in Romania, and HERE for the first time is a live debate between parties to the proceedings. The Local Authority wanted to respect mother’s clear wishes, the Guardian wanted to explore the extended family so that adoption would only be the outcome if it was the last resort.

This has long been a difficult philosophical issue, and it is difficult to ever find a decision on this point that most people would agree on.

The Court here decide that it IS in the child’s interests for that exploration to be made, and place reliance on ‘nothing else will do’ (although it is quoted as ‘nothing less will do’). That, I suspect, is likely to be the conclusion of such debates in the future, unless there are compelling reasons to the contrary.

It does, as the Local Authority submitted, raise the spectre of mothers not coming to Local Authorities to relinquish where they don’t want their family involved or contacted, but going back to the bad old days with babies being left in wicker baskets outside hospitals or police stations.

I move on to the last issue before me which is should enquiries be made of the maternal family in Romania and that this would entail a breach of the mother’s confidentiality. The local authority have said that there should be no more enquiries, that it would not be in A’s best interests. It would delay the proceedings here and it would delay the making of a care order and a placement order. The guardian is of a different view and says that there should be enquiries because it would be in A’s best interests if those enquiries are made.
It is never an easy point to breach the confidentiality of a mother who has given birth in difficult circumstances and I recognise that she does not want her family to know about the child and she has given her reasons. It has been said by the local authority that if it became known by a mother in similar circumstances, and if she felt that her confidentiality would be broken, she may not seek the assistance of medical help in giving birth; she may seek “a back street abortion” or give birth secretly which would endanger the mother and the child. The reality is that each case depends on its own facts. The matter is within my discretion.
Under the Children Act my task is to consider the child’s best interests and that must be my paramount consideration. It then sets out the checklist required by section 3 as to whether I make an order or relating to the welfare and best interests of the child. Under the Adoption of Children Act 2002, section 1(2) the paramount consideration of the court must be the child’s welfare throughout his or her life and I am referred to the checklist and things that I have to consider all relating to the future welfare of the child. The care plan here is for adoption. Romania, I acknowledge, does not have the same rules for adoption and their position for placing children is different from ours. Here, recently adoption has been described as the last resort for a child when all else fails and that was said in Re B [2013] UKSC 803 or, as Lady Hale said, it is “when nothing less would do”.
It is a last resort at the end of the day because it is the curtailment of a child belonging to his or her natural family. By adoption the child legally becomes a member of another family and is incorporated into that family on an everyday basis. She would become a full member of that family legally, practically, and emotionally. It is a change of identity of lifestyle, environment, a change of everything in a child’s life. It is a cutting off for the child from her background or the knowledge of the family and the environment in which she came from and it is a cutting off in law as well. The President in the recent case of Re B indicated that it should only be done on very clear evidence and there must be proper evidence both from the local authority and from the guardian and the evidence must address all issues and must contain an analysis of the arguments for and against each option. There must be clear evidence and proper information or as much as can be garnered. All options must be considered before a care plan for adoption can be accepted, with a placement order being made or an adoption order being made.
The court has a duty to ensure that full and proper enquiries have been made of the child’s family. Herein lies the problem, the tension between the little girl’s interests and rights and those of the mother. The mother is not present because she cannot be found and she is not here to put her view and her voice cannot be heard but she made her wishes and intentions for her daughter clear. She wanted the little girl to be adopted and she wanted full confidentiality and had concealed the pregnancy. It is not known how the maternal family would react or what the consequences might be either within the family or to the mother if it became known by the family that the mother had given birth to this little girl and had effectively abandoned her in a foreign land. That we do not know. All we have is the indications by the mother that the family was disapproving of her relationship with the father and she felt that they would not support her in keeping the baby, that the father was not interested. We do not know the consequences that might arise if the family knew about it. All we know is that she wanted confidentiality for her own reasons.
Against that, the little girl has her rights and rights that should be considered before she is adopted here by her current carers. Enquiries should be made to see if she can be returned to her family, her culture, her birth environment, the country of her origins and those are her rights. Both sides, the mother and the daughter, can claim their right to Article 8 of the Human Rights which is that everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of respect except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, and economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In other words, in a case like this, there is to be respect for the individual’s private and family life and that the court and others should not interfere with that right.
I must also remember that if the information is correct, there are other members of her family, the grandmother, and there may be a grandfather, the half-siblings, and the father himself would have rights to know about this child, to have a voice in that child’s upbringing, if only to say, “We are not interested,” but they have rights.
It is established law that if there are conflicting interests between a child and adults that after careful consideration of all the interests and consequences of any order, and the child’s interests are paramount and they prevail over others.
On the one hand, we have the mother’s position, as she set out and her wishes and her intentions for her daughter. On the other hand, we have the little girl’s interests. Very little is known about her mother or her maternal family or their circumstances and even less about the father who has not been identified. The guardian, on behalf of A, says that it is important to carry out further enquiries and investigations to see if there is a long-term family member available in Romania, if there is a possibility of direct or indirect contact in the future if she is to remain here and to be adopted; and, if she is to be adopted, more information as to her background would be useful as to her family, their background. Such information may be of value to her in the future to know who she is, to know her background and to give her some sense of identity as to where she came from. Her guardian says that eventually if she is to be adopted, she will grow up to know that she has been adopted but she needs to know before she is adopted that everything was done that should have been done before a decision is made and that will be of value to her in her adult life. The guardian accepts that if there are to be further enquiries, there must be no delay.
There was a window of opportunity in February, it has narrowed in the last few weeks and there is very little time left if those enquiries are to be made. If I allow enquiries to be made, they should be strictly time restricted. The local authority say that there is enough information for this court to proceed, that this child needs to be settled quickly, decisions should be made and there should be no more delay given that the mother’s wishes are clear.
I accept, if there is to be further investigation, that delay is an issue. Fortunately she is well placed. If she is to be adopted there will be no move and therefore she herself from a day to day point of view will remain settled until more is known and further decisions can be made but against that, the stress and strain on the carers must be huge. They love her and are committed to her and want to commit to her long term. They need certainty now or very soon from now. It is not fair on them to make them wait for ever. I bear that very much in mind because they are doing a good job and the little girl is benefiting from their care. Anxiety within the home never is good. It will or potentially could impact upon their care and that is what worries me.
I have thought about this and it is not an easy issue but I have come to a decision. I have come to the view that it would be in A’s best interests to make further enquiries in Romania about her family and for the reasons set out by the guardian but those enquiries should be strictly time limited. There should be a strict timetable as to when they should be concluded. If they are not concluded in the timescale because it has not been possible, then decisions will have to be made in this court to conclude these proceedings. I think there should be one last attempt to make further enquiries of the mother’s family and of the father’s if he can be identified and of the provision and systems for child care in the Romanian locality.

 

As I said at the outset, this was not strictly a relinquish case, because mother didn’t sign the forms, but it is on any reading a case where that was her intent, and the High Court here apply “nothing else will do” as a rationale for not making the order, delaying the proceedings and making further enquiries about family members.

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