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Consent to adoption where the parent is themselves still a child

Posted on November 7, 2017 by suesspiciousminds

An exceptionally sad and legally difficult case, handled with care and delicacy by all involved.

Re S (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam)
http://www.bailii.org/ew/cases/EWHC/Fam/2017/2729.html

2.S is a young person; she is under 16 years of age. S suffers from developmental delay and learning disabilities. Approximately 12 weeks ago, S gave birth to a baby (T). T was delivered by caesarean section under general anaesthetic. The putative father of the baby is an adult.


3.S wishes nothing to do with the baby, T. She has not seen T. She has not named T. She did not want to know the gender of T, but has recently discovered this by accident; S then wanted to know T’s given name. S does not want the father to have anything to do with T. T was placed with foster-to-adopt carers directly from the hospital, accommodated under section 20 Children Act 1989 (‘CA 1989’) with S’s agreement. S wishes for T to be adopted, as soon as possible

This is an unusual case in that everyone in the room was very clear that the outcome for T would be adoption and that this was the right thing for T, but the difficulty was in how to get there.


5.All parties agree that the ultimate outcome of the current legal process is overwhelmingly likely to be the adoption of T. The route by which that objective is reached is more contentious.

6.The central issue for determination is S’s competence to consent to the placement of T for adoption, and T’s adoption; in the event of S’s incompetence on this issue, I am asked to consider the route by which T’s legal status can be secured. That issue, and the associated issues arising on these facts, have been broken down as follows (taking them in the chronological and I believe logical sequence in which they arise):

i) By what test does the court assess generally the competence of a child as a decision-maker?

ii) Can a child parent give consent to accommodation of their child (under section 20 Children Act 1989), even if assessed to lack competence in other domains, including litigation competence in associated / simultaneous adoption or placement proceedings?

iii) What is the test for establishing the competence of a child parent to consent to the placement and/or adoption of their baby?

iv) Should steps be taken to help the child parent to reach a competent decision?

v) In what factual circumstances is the section 31(2) CA 1989 ‘threshold’ likely to be met in relation to a relinquished baby, so as to found jurisdiction for the making of a placement order under section 21(2)(b) ACA 2002?

vi) Where a placement order is refused on the basis that the grounds in section 21(2) of the ACA 2002 are not established, and where there is also no valid consent to adoption, either because the child parent is not competent, or she declines to give consent, how does the court proceed towards adoption for the baby?

There was an argument as to exactly how much understanding S would need to have (or reach) about what adoption involves – does she need to understand what a Placement Order is and what an adoption order is?

If I may say so (and I may, because this is my blog), Bridget Dolan QC makes one of the best points I have ever seen in relation to that


36.Although not cited in argument, I further remind myself of the comments of Chadwick LJ in the Court of Appeal in Masterman-Lister v Brutton & Co (No 1) [2002] EWCA Civ 1889, [2003] 1 WLR 1511: at [79]:

“a person should not be held unable to understand the information relevant to a decision if he can understand an explanation of that information in broad terms and simple language”

So, says Ms Dolan, it is not necessary for S to understand all the peripheral and non-salient information in the adoption consent form in order to be declared capacitous. Nor does she even need fully to understand the legal distinctions between placement for adoption under a placement order and not under a placement order. Indeed, Ms Dolan herself relies in this regard on Re A (Adoption: Agreement: Procedure) at [43] where Thorpe LJ observes that the differences between freeing and adoption are:

“… complex in their inter-relationship and it is not to be expected that social workers should have a complete grasp of the distinction between the two, or always to signify the distinction in their discussion with their clients” (my emphasis).

If social workers are not expected to understand the complexities of the legislation (or its predecessor) or explain the distinction accurately to the parents with whom they are working, asks Ms Dolan, why should a person under the age of 16 be expected to be able to grasp them in order to be declared capacitous?

If I may quote from Kite Man :- “Hell yeah”

HELL YEAH

I don’t think it is generally considered becoming to mic-drop after making an awesome point in the High Court, but I think it was warranted for that.

Did I mention “Hell yeah” before I dropped that? Oh, you can’t hear me now…

Cobb J helpfully draws together some guidance on what exactly a person should be able to understand when agreeing to s20 accommodation, and what exactly a person should be able to understand when agreeing to adoption. This is extremely clear and helpful. Of course.

60.I see considerable merit in borrowing key aspects of MCA 2005 and importing them into the assessment of Gillick competence of a young person at common law, in order to maintain a consistency of approach to the assessment of capacity of adult decision-makers and children decision-makers. Just as the capacity threshold should not be set artificially high under the MCA 2005, nor should it be for children. It follows that in order to satisfy the Gillick test in this context the child parent should be able to demonstrate ‘sufficient’ understanding of the ‘salient’ facts around adoption; she should understand the essential “nature and quality of the transaction”[12] and should not need to be concerned with the peripheral.

61.It will, however, be necessary for the competent child decision-maker to demonstrate a ‘full understanding’ of the essential implications of adoption when exercising her decision-making, for the independent Cafcass officer to be satisfied that the consent is valid. If consent is offered under section 19 and/or section 20, it will be necessary for a form to be signed, even if not in the precise format of that identified by PD5A. I accept that on an issue as significant and life-changing as adoption, there is a greater onus on ensuring that the child understands and is able to weigh the information than if the decision was of a lesser magnitude (see Baker J said in CC v KK & STCC [2012] EWHC 2136 (COP) (§69)). This view is consistent with the Mental Capacity Code, which provides at para.4.19:

“… a person might need more detailed information or access to advice, depending on the decision that needs to be made. If a decision could have serious or grave consequences, it is even more important that a person understands the information relevant to that decision” (emphasis added).
62.By way of summary and conclusion, I distil the following principles from my analysis above:

i) The test of competence for decision-making of a young person is that set out in the House of Lords decision of Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 WLR 830, [1986] 1 AC 112 (“Gillick”) (“a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”); in this regard, the child should be able to:

a) Understand the nature and implications of the decision and the process of implementing that decision;

b) Understand the implications of not pursuing the decision;

c) Retain the information long enough for the decision-making process to take place;

d) Be of sufficient intelligence and maturity to weigh up the information and arrive at a decision;

e) Be able to communicate that decision.

ii) The determination of a child’s competence must be decision-specific and child-specific; It is necessary to consider the specific factual context when evaluating competence;

iii) Just because a child lacks litigation competence in (for example) care or placement order proceedings does not mean that she lacks subject matter competence in relation to consent to section 20 CA 1989 accommodation of her baby, or indeed to the adoption of the baby;

iv) The assessment of competence must be made on the evidence available;

v) When considering the issue of Gillick competence of a child parent, an important distinction must be drawn between the determination of competence to make the decision, and the exercise by that young person of their competent decision making;

vi) The relevant information that a child under 16 would need to be able to understand, retain and weigh up in order to have competency to consent to the section 20 accommodation of a child would be:

a) That the child will be staying with someone chosen by the local authority, probably a foster carer;

b) That the parent can change her mind about the arrangements, and request the child back from accommodation at any time;

c) That the parent will be able to see the child

vii) The salient or “sufficient” information which is required to be understood by the child parent regarding extra-familial adoption is limited to the fundamental legal consequences of the same; this would be:

a) Your child will have new legal parents, and will no longer be your son or daughter in law;

b) Adoption is final, and non-reversible;

c) During the process, other people (including social workers from the adoption agency) will be making decisions for the child, including who can see the child, and with whom the child will live;

d) You may obtain legal advice if you wish before taking the decision;

e) The child will live with a different family forever; you will (probably) not be able to choose the adopters;

f) You will have no right to see your child or have contact with your child; it is highly likely that direct contact with your child will cease, and any indirect contact will be limited;

g) The child may later trace you, but contact will only be re-established if the child wants this;

h) There are generally two stages to adoption; the child being placed with another family for adoption, and being formally adopted;

i) For a limited period of time you may change your mind; once placed for adoption, your right to change your mind is limited, and is lost when an adoption order is made.

viii) When determining the competence of a child parent in these circumstances, “all practicable steps to help” her, as the decision-maker, to make the decision, must have been taken; a young person under the age of 16 will be treated as understanding the information relevant to a decision if she is able to understand an explanation of it given to her in a way which is appropriate to her circumstances (using simple language, visual aids or any other means).

ix) The decision to consent to adoption is significant and life-changing; there is a greater onus on ensuring that at the decision-making stage the child understands and is able to weigh the information;

x) Before exercising her decision-making, the child parent should freely and fully understand the information set out on the consent forms (which information is drawn from the ACA 2002 and from the Regulations); the information should be conveyed and explained to the young person in an age-appropriate way; there is no expectation that the young person would be able to understand the precise language of the consent forms;

xi) The question whether the threshold criteria is established in a relinquished baby case (section 21(2)) ACA 2002) is one of fact;

xii) If there is any doubt about the competence of a child parent to give consent to adoption or placement for adoption, the issue should be referred to a court.

The Court also say that the person can be helped in their comprehension and understanding – obviously considerable care needs to be taken not to lead or influence any decision.

41.When determining capacity under the MCA 2005, a court must be satisfied that “all practicable steps to help” the decision-maker to make the decision have been taken (section 1(3) MCA 2005). I see no real reason to take a different approach, indeed every reason to follow the approach, in relation to a child parent in these circumstances. Adapting the language of section 3(2) MCA 2005, a young person under the age of 16 will be treated as understanding the information relevant to a decision if she is able to understand an explanation of it given to her in a way which is appropriate to her circumstances (using simple language, visual aids or any other means).

42.While there were differences of emphasis in argument on this point, all parties before me appear to agree that it would indeed be reasonable to give S some age-appropriate information about adoption in an age-appropriate way in order to enhance her decision-making potential. This should not, in my view, involve a lengthy programme of class-room teaching, or anything of that sort; it may in fact be done in one reasonably informal session, but it would probably be better done in two or more sessions over a short period, to give her the chance to assimilate the information and improve her understanding of it. The information shared with S in this exercise should not violate her clear desire to know nothing specific about T nor T’s situation.


43.This approach enhances S’s right to exercise autonomous decision-making under Article 8 ECHR; this is a matter of considerable importance, given the significance of the issue for both S and T.

In this case, the Court directed an assessment of capacity to look at all of these issues. The Court had to look at whether threshold would be met IF the mother did not have capacity to agree to adoption (since the alternative legal route requires that threshold is established)

44.There is a dispute between the Local Authority on the one side, and the respondents (the mother and child, through their guardians) on the other, as to whether the threshold criteria are established for the purposes of section 21(2)(b) ACA 2002; it is clear that neither section 21(2)(a) nor (c) are satisfied.

45.This raises, essentially, a question of fact. I have not in fact been asked to decide the question of fact, but have been addressed on the issue, and consider it right to express my view.

46.Relinquished baby cases fall into a special category of public law cases, where conventional concepts (if I may so describe them) of harm, significant harm, and likelihood of harm do not generally arise. The question, therefore, is whether, and if so in what circumstances, a relinquished baby would be the subject of a care or placement order. The decision of Cazalet J in Re M (Care Order)(Parental Responsibility) [1996] 2 FLR 84 is an example of a case where the threshold was found to have been met; this case concerned a baby boy who was only a few days old and was abandoned in a hold-all on the steps of a health centre. Cazalet J found the threshold proved under section 31(2) CA 1989, saying:

“the very fact of abandonment establishes that M [the child] was suffering from significant harm immediately before the rescue operation was carried out by the two workers from the clinic. To leave a child a few days old, alone and abandoned as occurred here, with all the risks that such entails, shows in the clear terms a complete dereliction of parental responsibility. ‘Harm’ means ‘ill-treatment or the impairment of health or development’ (see s?31(9) of the Children Act 1989). To abandon a child in the manner in which M was abandoned must constitute ill-treatment. Accordingly, I consider that M was suffering from significant harm immediately prior to being found by the clinic workers”

Cazalet J further found that M was likely to suffer significant harm by reason of knowing nothing of his parentage, background or origins.
47.In Re M & N (Twins: Relinquished Babies: Parentage) [2017] EWFC 31, I found the ‘threshold’ (under section 21(2)(b) ACA 2002) established in relation to relinquished twins, having concluded that the mother had made few preparations for their future care (see [8]) and had been only intermittently co-operative with health professionals; both parents had abrogated responsibility for the children (see [26]), without any ostensible regard for their well-being. In that case, no party argued that the threshold was not met.

48.By contrast, in Re AO, Baker J concluded that the threshold was not made out, where the parent had made reasonable arrangements for the welfare of the relinquished baby. He said this at [19]:

“… the fact that the mother has given up her baby does not by itself satisfy the threshold criteria under section 31. When a baby has been simply abandoned on a doorstep, it is likely that criteria will be satisfied – each case will, as always, turn on its own facts. In cases where the mother has reached the difficult decision that she cannot keep the baby, notified the local authority in advance, and made responsible plans for the relinquishment of the baby in a way which minimises the risk of harm, it is in my judgment unlikely to be the case that the threshold criteria will be satisfied. It is likely that a baby deprived of her mother’s care will suffer some form of harm but that will be diminished if the baby is swiftly moved to another carer in a planned way. Even when a baby suffers harm from being deprived of her mother’s care, it does not follow in these circumstances that the harm can be described as being attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A mother who concludes that she cannot care for her baby, and who notifies the authorities and makes responsible plans for relinquished in the baby at birth, is not, in my judgment, acting unreasonably”.

In the preceding judgment in the same case dealing with jurisdiction issues (Re JL & AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam) at [50]), Baker J had made the point (reinforced above) that the relinquished baby may be caught by the threshold criteria, but it all depends on the individual facts and the circumstances of the singular case.
49.In this case, the Local Authority assert that the threshold is made out under section 21 ACA 2002. They rely on a combination of factors including the lack of a relationship between mother and child, the lack of contact or interest in the child’s welfare, and the assertion that “the mother has rejected the child outright with vehemence”.

50.Mr. Spencer and Miss Cavanagh dispute that the threshold is established in this case; they reject the proposition that T has suffered harm or is likely to suffer harm. They point to the reasonableness of the mother’s decision-making, which she has reached in concert with the social workers from the moment she knew she was pregnant. They argue that, while each case must be viewed on its own facts, the facts here are closer to those described by Baker J in Re AO than I described in Re M&N.

51.Having reflected on the material before me, I am inclined to agree with Mr. Spencer and Miss Cavanagh. This is a case in which for some time before T’s birth, S had made reasonable plans for her baby; unlike the mother in Re M&N she prepared for the birth of her baby, and co-operated with the professionals both before and after the birth. She participated, doubtless at considerable personal distress, to ante-natal screenings and checks over a number of weeks. That she has been clear in her wish to have nothing to do with T now does not represent her dereliction of parental responsibility, but an exercise of it.

52.I do not propose formally to rule on this issue, as the hearing had not been set up for me to hear factual evidence on the threshold point. But I rather suspect that the undisputed facts are sufficiently well-established on the papers as to render such exercise unnecessary, and the provisional view I have articulated above will be enough to allow the parties to chart the way forward.

So IF mother lacks capacity to consent to adoption AND threshold is not met on the facts of the case, what is left?

Well, a private adoption is mooted, but that’s not straightforward either. It really depends whether the carers (who are foster-to-adopt carers) are considered as prospective adopters (when they can apply after 10 weeks) or foster carers (who would have to wait for a year) and that’s not a straightforward thing to resolve.

Where a placement order is refused on the basis that the grounds in section 21(2) of the ACA 2002 are not established, and where there is also no valid consent to adoption, either because the child parent is not competent, or she declines to give consent, how does the court proceed towards adoption for the baby?
53.The first point to note is that while the court can declare that an adult has, or does not have, capacity to consent to adoption, the court cannot actually give consent to adoption on behalf of the incapacitous adult parent (see section 27(1)(e)/(f) MCA 2005).

54.In the circumstances posed by this question (which Miss Cavanagh submits is a real likelihood on these facts) it is suggested that the adoption could proceed as a private adoption on these facts under section 44 (see [12] above), with the prospective adopters serving notice of intention to adopt, and within that application, the court may dispense with the consent of the mother under section 47(2)(c) on the basis that T’s welfare demands it. Although there is a reasonable argument that T has been placed with her current carers as adopters (see generally on this Re A (Children) (Adoption: Scottish Children’s Hearing) [2017] EWHC 1293 (Fam); [2017] 4 WLR 1), there are two likely difficulties in that approach

i) There is an argument that T was placed with the foster-to-adopt carers straight from hospital “otherwise than as prospective adopters” (see section 44(8)(a));

ii) T’s consent to this placement was obtained within 6 weeks of T’s birth and is therefore ineffective as a consent to placement for adoption[11].

It seems possible for me to order the placement of T with the foster-to-adopt carers under section 42(2)(a), but the better option may be, as Miss Cavanagh proposes, that the section 44 route is deployed by which an adoption application could be issued, and S’s consent dealt with in that context.
55.Mr. Spencer, who like Miss Cavanagh contemplates the outcome posed by the question above, proposes that if the statutory route does not lead to a satisfactory answer, the court could invoke the inherent jurisdiction to ‘regularise the position’ and authorise the placement of T with the proposed adopters. For my part, I am satisfied on the current facts, that there is a sufficient prospect that the provisions of Chapter 3 of the ACA 2002 discussed above will offer a solution in this case; if S’s consent is not, or cannot be, validly given to T’s adoption or placement for adoption, I shall hear further argument on the precise route-map to the outcome to which all aspire.

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The Hungarian Games

Posted on July 13, 2016 by suesspiciousminds

 

A peculiar case where the parents were agreeing to adopt their child and the fight was about whether that would be in the UK or Hungary.

Hence the title. And not by any stretch of the imagination, a cheap opportunity for a Jennifer Lawrence photo.  Goodness looking through those photos to find a decent one was a terrible hardship.

 

 

I mean, seriously, I had to research the heck out of J Law for this piece

I mean, seriously, I had to research the heck out of J Law for this piece

 

Re AO (Care proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/36.html

 

And yes, this Judge was setting me up for an A-O Let’s Go, Ramones * title, and I spurned it. I feel bad and all, but c’mon. J Law!

(*yes I lost my mind in first draft and put the Buzzocks)

In this case then, the parents were both Hungarian, but had been living in England for some time. They had a baby and didn’t feel able to care for the baby, so they contacted the Local Authority to say that they wanted to relinquish the baby for adoption. They understood what was involved and freely agreed to it.  The LA felt that the baby should really grow up in Hungary, to be in touch with the parents culture.  The parents were adamantly against this. That argument meant that the only way the baby could be adopted in Hungary would be if the LA obtained a Placement Order. And in order to do that, they would need to prove that the section 31 Children Act threshold criteria were met – that the child was suffering significant harm, or likely to do so.

Tricky to do.

Let us see how the LA argued that threshold was met.

 

 

  • In this case, the local authority’s case was that, by failing to care for AO themselves and by relinquishing her to be looked after by the local authority, the parents had caused her to suffer significant emotional harm and to be likely to suffer further such harm, that harm being attributable to the care given to her not being what it would be reasonable to expect a parent to provide. The local authority further contended that the fact that the parents said that they were content for AO to be placed for adoption in England did not reduce the harm in question because the harm and likelihood of harm arose from AO

 

(a) having to be permanently removed from her mother at birth;

(b) having to be cared for by a foster carer, however caring and competent, rather than her own parents;

(c) having in due course to be moved to another carer, whether in England or in Hungary;

(d) being deprived of any relationship with her birth parents and possibly with their extended family;

(e) being deprived in her early weeks and months of experiences consistent with her Hungarian culture and heritage;

(f) being likely to become an adopted person rather than being brought up by her birth family, and having in due course to learn that her parents chose not to bring her up themselves.

 

  • In oral submissions, Mr Stuart Fuller on behalf of the local authority conceded that not every case where a child is given up for adoption would satisfy the threshold criteria. He submitted that in this case, however, the parents’ actions in not only giving AO up but also insisting that she should not be placed in Hungary either with her birth family or with adoptive parents was unreasonable and was causing, or likely to cause, harm to AO in depriving her of the opportunity to live with her birth family and/or in her birth culture.

This position was supported by the children’s guardian. He submitted that neither parent had in fact provided AO with any care at all. He concluded that it was in her best interests to live in Hungary. The parents’ withholding of information concerning the family would prevent her having a complete understanding of her background and history and would impinge on her emotional welfare

 

I think this is skilfully put together, but it is nowhere near establishing threshold.

Unusually, the parents here shared the same silk, Frank Feehan QC, but each had their own junior counsel. I haven’t ever come across that before. But if you think that Frank Feehan QC (of Re B fame) was going to swallow that threshold, you haven’t been paying attention.

 

 

  • On behalf of the parents, Mr Frank Feehan QC, leading Ms Grainne Mellon for the mother and Ms Katherine Dunseath for the father, submitted that the threshold criteria were not satisfied in this case. They reminded me of the definition of “harm” in section 31 (9), and also reminded me of the provisions of section 31(10):

 

“where the question of whether harm suffered by a child is significant turns on the chart’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child”.

Mr Feehan and the juniors representing the parents further cited the well-known observation of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 at para 70:

“society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

 

  • The core submission made on behalf of the parents was that the factual assertions made by the local authority and accepted by the mother did not amount to a finding of significant harm. It was submitted that to find that, as a relinquished child born in this country and now highly adoptable, AO would suffer significant harm as a result of growing up English rather than Hungarian would be a distortion of the statutory criteria. These parents took a decision as to the future of their child which many do not take: that they are simply not ready and not able to care for her and others should do so. They were in early contact with the authorities and fully cooperated with arrangements to ensure more than adequate care. In addition, it was submitted that, contrary to the suggestion that no information had been given by the parents as to AO’s background, the parents had in fact given brief but full details of their own families and background and upbringing.

 

 

 

The Judge, Mr Justice Baker, was also mindful of public policy issues – if you make it too difficult and too onerous and too intrusive for a parent who wants to give their child up for adoption to do so, well then you’ll return to the days of children being left in wicker baskets on the doorsteps of hospitals and police stations. There has to be a balance

 

 

  • In my earlier judgement, I considered earlier reported cases in which a child had been given up by parents for adoption. In particular, I cited the observations of Holman J in Z County Council v R [2001] 1 FLR 365 :

 

“Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgment, a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies …. There is, in my judgment, a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes.”

I observed (at para 47 of Re JL, Re AO)):

“It might be thought that giving up a baby for adoption is a dereliction of responsibility. In many such cases – perhaps most – the truth will be very different. Anyone who has read the accounts of persons who have given up a baby in those circumstances will soon come to see that it is usually a decision taken only after a great deal of thought and anguish, by parents who realise that they cannot look after the baby and wish to give the baby the best opportunity to grow up in a loving home.”

 

  • As I pointed out in the earlier judgment, very few babies nowadays are given up for adoption at birth. In the first half of the 20th century, when illegitimacy still carried great social stigma, the numbers of babies adopted at birth were very much greater. As the stigma has evaporated, so the numbers of deduction so the numbers of babies relinquished for adoption have dwindled. New techniques for reproduction have provided different ways of meeting the requirements of couples who are unable to have children themselves. But there remain a few isolated cases where a mother concludes that she is unable to look after her child. It may be because her past history demonstrates that she is incapable of caring for a child. Or it may be that she feels that she cannot keep the baby for other reasons. A civilised society must accommodate such feelings and decisions, as societies always have. These feelings and decisions come within the range of diverse parenting to which Hedley J was referring in Re L. If society does not tolerate and facilitate such decisions, mothers who feel that they cannot keep them babies will be driven to take other measures.
  • It follows, therefore, that the fact that the mother has given up her baby does not by itself satisfy the threshold criteria under section 31. When a baby has been simply abandoned on a doorstep, it is likely that criteria will be satisfied – each case will, as always, turn on its own facts. In cases where the mother has reached the difficult decision that she cannot keep the baby, notified the local authority in advance, and made responsible plans for the relinquishment of the baby in a way which minimises the risk of harm, it is in my judgment unlikely to be the case that the threshold criteria will be satisfied. It is likely that a baby deprived of her mother’s care will suffer some form of harm but that will be diminished if the baby is swiftly moved to another carer in a planned way. Even when a baby suffers harm from being deprived of her mother’s care, it does not follow in these circumstances that the harm can be described as being attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A mother who concludes that she cannot care for her baby, and who notifies the authorities and makes responsible plans for relinquished in the baby at birth, is not, in my judgment, acting unreasonably.
  • The local authority argued that, in this case, the relinquishment has been accompanied by an insistence on the baby being placed in England, and a reluctance to co-operate with attempts to contact the Hungarian extended family or place the child in that country. As a result, A had suffered harm through being deprived of links with her extended family and culture. I agree that on one view this could be considered detrimental, but it is doubtful that it can be regarded as significant harm and, even if it can, I do not consider that the parents can be said to be acting unreasonably. It is not unreasonable for them to want the baby to be placed for adoption in this country. Such views also fall within the range of diverse parenting identified by Hedley J. Unless society tolerates and facilitates such decisions, mothers who want their children to be placed in this country will be driven to take other steps.
  • Accordingly, I concluded that the local authority has failed to prove the threshold criteria for making a care order under section 31 in this case.

 

 

 

As it was not possible to make a Placement Order without either parental consent or satisfying the threshold criteria, it wasn’t NECESSARY for the Judge to rule whether it might be better for the child to grow up in Hungary rather than England  – but Baker J made it plain that he would not have done so in any event

 

Welfare

 

  • In the light of my decision as to the threshold criteria, it was strictly speaking unnecessary to determine whether the local authority plan for placing AO in Hungary would be the best outcome for her welfare, having regard to the provisions of section 1 of the Children Act. As I indicated at the conclusion of the hearing, however, it is my view, having considered the arguments, that such a plan would not be in AO’s overall interests, and I here set out the brief reasons for so concluding.
  • The local authority’s consistent view throughout these proceedings was that it was in AO’s interests to be brought up in Hungary. She is a Hungarian citizen whose heritage is Hungarian. Other than the place of her birth and placement with her foster carer for the last six months, she has no connection with this country. She has no extended family here. In addition, the local authority submitted that, were she to be adopted here, she would in due course be told of her background and would learn that she has Hungarian parents and extended family. It was argued that, were she then to learn that she had been “turned into” an English child because that was what her Hungarian parents wanted, she would be likely to suffer identity confusion which in turn could lead to emotional harm and stress within her adoptive family. In addition, if she is brought up in England, by the time she learns of a Hungarian background it will be extremely difficult if not impossible for her to make any meaningful connection with her heritage.
  • In reply, the parents’ consistent view throughout these proceedings has been that it would be better for AO to be brought up in this country. In addition, she was by the date of the hearing nearly seven months old and settled with her English carer. If she was moved to Hungary, she would move to a country where she is unfamiliar with the surroundings and language. In addition, if placed in Hungary, she would be subjected to at least two further moves of family – an initial preliminary foster placement to be followed by a move to a permanent family. In contrast, if she remained in this country, she would stay with the current carers until such time as an adoptive placement has been found.
  • The children’s guardian supported the local authority’s plan for moving AO to Hungary. He attached particular importance to her cultural heritage which would not be sustained if she was placed with an English family. A further concern highlighted by the guardian was that Hungary would be unlikely to recognise the adoption in England of a Hungarian child. This could create difficulties were AO to visit Hungary. Her ability to get to know Hungarian culture and background would therefore be impeded. The guardian feared that this might impinge adversely on her ability to gain a true sense of her identity, which in turn could lead to a sense of injustice with adverse consequences for her self-esteem, development and behaviour.
  • Set against that, however, the guardian expressed concern that with every passing week AO was becoming more attached to her current placement. He also pointed out that, if she was to be adopted here, a transition plan would be formulated involving both carers offering reassurance to help her with the change of primary care. In contrast, if she were to be placed in Hungary, the transition timespan would inevitably be much shorter which might cause difficulties in adjustment. Although it had been agreed that her carer and social worker would take AO to Hungary and take part in the transition arrangements, that process would, as the guardian identified, inevitably take place over a shorter period of time than in England. While supporting the local authority’s plan, the guardian was concerned that the details of how a Hungarian adoption would be arranged remained unclear, in contrast to the clarity of the process by which an adoption would be arranged in this country.
  • I accept that, other things being equal, it would be in AO’s advantage to grow up in her own culture. However, other things are not equal. AO is settled with her English foster carer and a move to Hungary would in my judgment be far more disruptive and damaging than an adoptive placement in this country which will involve only one change of carer, no language difficulties, and a transition that can be arranged at a pace and in a way that best meets AO’s needs. It is, of course, very important that AO should be brought up with an awareness of her cultural background, but in my judgment this can be addressed by carefully selecting adopters who are able and willing to accept that she has such needs which they as her permanent parents will have to meet. I acknowledge the potential difficulties if Hungary refuses to recognise an English adoption of a child that it regards as Hungarian, but in my judgment this factor, and the others identified by the local authority, do not outweigh the clear benefits of proceeding to place her for adoption in this country. Accordingly, had I been required to do so, I would not have accepted the local authority care plan as being the right option to meet AO’s needs.

 

 

 

A good decision, in my book. And it clarifies the position for other Local Authorities, and indeed parents.

 

Sometimes the law can be fair and kind, despite all the complex language and mystique.

Oh boy, did someone say “Mystique?”

 

Yes, these images are completely necessary to convey the legal niceties of the case

Yes, these images are completely necessary to convey the legal niceties of the case

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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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