Last year, we wrote a post about non-notification of fathers about family court applications where there was a history of violence or abuse, in particular where a child had been conceived of rape (See : When should I apply for permission not to notify a father about a court case concerning his child?) The topic was controversial because of the case of Sammy Woodhouse, who had raised concerns about the involvement of her rapist (her son’s father) in care proceedings concerning the child. There has been some subsequent case law, and one recent authority in particular, which is of some relevance :
Here, the Court of Appeal give guidance on three conjoined appeals. They all concern mothers who wished to conceal the existence of their baby from various people (extended family and / or the father). In two of the cases the mother had relinquished her baby for adoption. One of the babies was said to have been conceived by rape. The circumstances therefore differ from those in our earlier posts, where adoption was not involved.
Although many adoptions in this country are non-consensual adoptions for child protection reasons, there are still babies whose mothers relinquish (give them up). These appeals show there is a range of reasons for doing so. The reasons some mothers give for not wanting their family or the father and his family told often centre around fear, shame or a history of abuse, and possibly a view that the extended family could not provide suitable and safe care for the baby. Formal consent to adoption is still required from a mother but not from a father unless he has parental responsibility. It is highly exceptional for the local authority to be authorised by the court that a father should not be notified if he does hold parental responsibility.
The Court of Appeal conduct a lengthy review of the law in this area. They remind us of Family Proceedings Rule 14.21 (‘Inherent jurisdiction and fathers without parental responsibility’), which reads:
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.
What this means is that the local authority dealing with a relinquished baby may come to the court and ask for help if its is not sure whether it should be notifying a father before going ahead with an adoption.
The Court of Appeal confirmed that ‘the statutory material as a whole provides strong indicators of the importance of engagement of the wider family in the adoption process’.
The appeal court considered the duties under s1 Children Act 1989 / s1 Adoption and Children Act 2002 which apply whenever a court determines any question with respect to the upbringing of a child or whenever a court or adoption agency is coming to a decision relating to the adoption of a child – the welfare of the child, avoidance of delay etc. Surprisingly, said the court, there is a lack of clarity as to whether these principles have direct effect when a local authority or a court are deciding whether or not to notify a putative father or a relative of the existence of a child or of proceedings (some cases suggested the child’s welfare was paramount whilst others suggested it was not).
The court reviewed a long list of case law and concluded that the paramountcy principle (the welfare of the child) did not apply to decisions about who to tell about the existence of a child or of a court case.
Once the facts have been investigated the task is to strike a fair balance between the various interests involved. The welfare of the child is an important factor but it is not the paramount consideration.
Having looked at the case law, Peter Jackson LJ said :
…there is a broad consistency in the court’s general approach to the issue of notification of fathers and relatives. In my judgement, the balance that has been struck between the competing interests in these difficult cases is a sound one and there is no need for any significant change of approach.
In principle, he said::
Where the mother requests confidentiality, [the local authority] will need to decide at a very early stage whether an application to court should be made to determine whether or not the putative father or relatives should be informed and consulted.
There will be cases where, applying the principles summarised in this judgment, the local authority can be very clear that no application is required and planning for placement on the basis of the mother’s consent can proceed.
But in any case that is less clear-cut, an application should be issued so that problems concerning the lack of notification do not arise when adoption proceedings are later issued.
In relation to a putative father, that application will be under Part 19 unless issues of significant harm have made it necessary to issue proceedings for a care or placement order;
I would suggest that an equivalent application under the inherent jurisdiction can be made where a local authority has doubts about notification of a close relative.
The court said there is ‘no single test for distinguishing between cases in which notification should and should not be given’, but provided a useful list of relevant factors :
- Parental responsibility
- Article 8 rights
- The substance of the relationships
- The likelihood of a family placement being a realistic alternative to adoption.
- The physical, psychological or social impact on the mother or on others of notification being given.
- Cultural and religious factors
- The availability and durability of the confidential information
- The impact of delay
- Any other relevant matters
The court concluded with a reminder that:
the maintenance of confidentiality is exceptional, and highly exceptional where a father has parental responsibility or where there is family life under Article 8. However exceptionality is not in itself a test or a short cut; rather it is a reflection of the fact that the profound significance of adoption for the child and considerations of fairness to others means that the balance will often fall in favour of notification. But the decision on whether confidentiality should be maintained can only be made by striking a fair balance between the factors that are present in the individual case.
In two of these three appeals, the appeal court decided that the family of each baby should be notified. In the third there was sufficient justification for non notification.
The case also gives some detailed procedural guidance to social workers and local authorities dealing with concealed pregnancy / relinquishment type cases, which should be very useful.
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