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.
Baker J in Re JL (2016)
(2) The decision of the Supreme Court in Re B  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  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
- 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)
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)  1 FLR 646 at para ), “very compelling reasons indeed” (Re C (Adoption: Disclosure to Father)  EWHC 3385 (Fam),  2 FLR 589, at para ) or “cogent and compelling grounds” (Birmingham City Council v S, R and A  EWHC 3065 (Fam),  1 FLR 1223, at para ) 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  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)  1 FLR 646 at para  that Holman J “assumed” that there was no power, having heard no argument to the contrary. She herself (see at para ) 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  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  EWCA Civ 273
- 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)  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)  EWCA Civ 828 the Court of Appeal added that the interests of the adult parties may also support non-disclosure in an appropriate case.
- 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.
- 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.
- 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
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.