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Re TJ (Relinquished for adoption: sibling contact) [2017] EWFC 6

Judgment concerning the issue of post-adoption contact between two half-siblings.

This case concerned the issue of post-adoption contact between two half-siblings.  The local authority, in its capacity as adoption agency, sought a declaration from the court that it was permitted not to disclose the existence of the child, TJ, to members of his birth family.  This included specifically the mother's relatives and TJ's maternal half-sibling, PL, who was living with his biological father and who had recently been adopted by his step-mother.

The mother had relinquished the baby at birth and had consistently maintained the position that she wished TJ to be adopted and that she did not wish her family members to be made aware of his birth.  She had another child, EA, TJ's half-sister, who remained in her care. 

TJ had been placed with his prospective adopters, Mr and Mrs X, when he was approximately three weeks old and it was the unanimous view of all professionals in the case that he was thriving in their care.

Cobb J was able to dispose of the issue of whether the wider maternal family should be informed of TJ's existence with relative ease: neither the mother's mother nor her grandparents had been actively considered as potential carers for PL and he could see little if any benefit to TJ, therefore, in informing them about his birth.

The question of the potential for sibling contact between PL and TJ was more complex.  The prospective adopters were opposed to any form of contact and urged the court to make the declaration sought by the local authority, although they did indicate that, at most, they could support some indirect contact between TJ and PL if they were required to do so.  The social worker and the children's guardian were in agreement that the welfare needs of TJ did not support any requirement for contact between the half-brothers and so supported the making of the declaration.  The mother maintained her position that she wished the adoption order to be made 'swiftly and smoothly' and did not wish TJ's life to be complicated by relationships with his birth family.  In particular, she was fearful that there might be harassment from PL's father if he were to become aware of TJ's birth.

In his judgment, Cobb J works through the relevant parts of the adoption welfare checklist.  The views of the mother and in particular of the prospective adopters carried considerable weight. 

He then goes on to consider whether Article 8 rights come into play.  Aligning himself with comments made by Baker J in Re JL & AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam) (at [55]), he concludes that they do not.  This was a case in which the mother relinquished TJ for adoption; the order was not being made against her wishes.  Furthermore, the boys had no knowledge of each other and had no legal relationship, that having been extinguished by the adoption of PL.  In contrast, the adopters, Mr and Mrs X, had clear Article 8 rights, the strength of which required their views to be given serious consideration.  Moreover, the mother had made it clear that she wished for a 'dignified and swift' decision to be made in this case, which would not be possible if the feared harassment by PL's father were to occur by reason of him being made aware of the situation.

He therefore made the declaration sought by the local authority.

Summary by Sally Gore, barrister, Fenners Chambers
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Neutral Citation Number: [2017] EWFC 6
Case No: LS166/16

IN THE FAMILY COURT
SITTING AT LEEDS


Family Court
Coverdale House
East Parade
Leeds

Date: 02/02/2017


Before:

THE HONOURABLE MR JUSTICE COBB
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In the matter of TJ (Relinquished Baby: Sibling Contact)
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The prospective adopters were neither present nor represented
Brett Davies (Solicitor-Advocate) for the Local Authority as Adoption Agency
The mother was not present nor represented
Miss Julia Nelson (instructed by Ison Harrison) for the child (TJ)

Hearing dates: 24 January 2017
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Approved Judgment
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THE HONOURABLE MR JUSTICE COBB
This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

The Honourable Mr Justice Cobb:
1. This case concerns TJ, a boy born in late-October 2015; he is therefore 15 months old.  TJ was relinquished at birth by his mother ("the mother").  TJ has lived with prospective adopters (Mr. and Mrs. X) since late-November 2015. They have now issued an application to adopt TJ.  The case has been referred to me to consider an important issue: namely, whether the Court should authorise the Local Authority qua Adoption Agency not to notify TJ's wider family of his existence.  

2. Specifically, TJ has an older maternal half-brother (PL) who lives with his birth father and adoptive mother.  TJ and PL have no actual relationship.  They have never met.  They are no longer legally related.  TJ has an older maternal half-sister (EA) who lives with the mother.  TJ and EA have no actual relationship.  They have never met.  PL and EA do not have contact with each other. 

3. The Adoption Agency seeks the following declaration:

"That the Adoption Agency shall be permitted not to disclose the existence of TJ to any member of TJ's birth family including his former half-sibling (half-sibling by birth now adopted) or members of that child's family, and that this adoption application may proceed on the basis that the only respondents are (a) the mother, (b) the Adoption Agency and (c) TJ by his Children's Guardian".

4. The Adoption Agency has raised this issue within the proceedings without making any formal application.  Mr. Davies has suggested that I could exercise the inherent jurisdiction to make this declaration, though as I had specifically pointed out in Re RA (Case Management) [2016] EWFC 25 at [50], a preferred route is available for Local Authorities to make, namely:

"…a pre-emptive application to the court under Part 19 FPR 2010 ('Alternative Procedure for Applications'). By this process the Local Authority can request the court to make a "decision on a question which is unlikely to involve a substantial dispute of fact' (rule 19.1(2)(b)). It is I suggest the mechanism which is contemplated by rule 14.21 FPR 2010 for the invoking of the inherent jurisdiction where no proceedings have started and an adoption agency or local authority requires "directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption". In this situation, Part 19 provides an obvious mechanism. The Local Authority here suggests that clarification of whether there should be notification to consular officials, and/or notification to or assessment of extended natural family is directly analogous with the issue of the possible non-notification of a father without parental responsibility. Part 19 of the FPR 2010 derives from Part 10 of the Family Procedure (Adoption) Rules 2005; the procedure under Part 19 helpfully permits an application to be made without naming a respondent (rule 19.4 FPR 2010 and FPR PD19A, para 2.2)."

5. Either way, the matter is before the Court, and for the purposes of considering this application I have received and read a statement from the social worker, the Annex A (PD14C FPR 2010, Annex A) report prepared by the Adoption Agency social worker, statements of evidence from Mr. and Mrs. X, and the consent forms signed by the mother.  I have further received written and oral submissions on behalf of the Adoption Agency and on behalf of the child.  I have considered with care the following authorities: Re RA (Baby Relinquished for Adoption: Case Management) [2016] EWFC 25, Re RA (Baby Relinquished for Adoption) [2016] EWFC 47, Re JL & AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam).

6. At the conclusion of the hearing on 24 January I announced my decision.  This judgment sets out my reasons.

Background history

7. TJ is the mother's third child.  All three children have different fathers. 

8. The mother's first child (a boy), PL, lives with his father; the mother sought to relinquish him at birth, but in the event PL's father was located and informed of his existence.  PL now lives with his father, and in December 2016, he was adopted by his step-mother.  The mother asserts that PL's father has harassed her in the past on social media for her initial decision to relinquish PL; the police were, I am advised, involved in relation to the harassment.  I am not in a position to assess whether this is true or not, but note that this explains at least in part her strong wish that he does not know of TJ's existence.

9. The mother's second child, EA (a girl), is rising 3, and lives with her mother.  EA has never had any contact with PL.

10. The mother fell pregnant with TJ while on holiday in Mallorca in February 2015; TJ's father is unknown.  The mother has been able to provide his forename, but no surname.  The mother has informed the Adoption Agency that she has no means of contacting the father.  The mother informed no-one of her pregnancy; she has a difficult relationship with her own mother, who was not considered to care for PL; she asserts that her grandparents would not be well-placed to care for TJ by reason of their age. Following TJ's birth at hospital, the mother did not want to hold him, or even know his gender (though this became apparent to her as the staff referred to the baby as 'him').  She did not wish to see him following the birth, and left the hospital within seven hours of the birth, declining midwifery services; she indicated to nursing staff that she did not wish to care for TJ.  TJ was discharged from hospital to short-term foster carers, where he remained for three weeks before being placed with Mr. and Mrs. X.

11. Three days after TJ's birth, social workers visited the mother at home; she confirmed that she did not wish to care for TJ, even though she was caring for EA (then aged 18 months); she did not wish to choose a name for TJ, and did not wish to register his birth.  She consented to his accommodation under section 20 CA 1989.  She then 'went to ground' and could not be contacted.  The Adoption Agency issued placement order proceedings, and within that context, the mother resurfaced and made contact with the court-appointed Children's Guardian.  The mother met the Guardian and gave her formal written consent to TJ's placement for adoption, and gave her consent to adoption in the prescribed forms.  These were signed on 22 April 2016.  The mother again confirmed that she did not want to have any contact with TJ, and did not want to be advised of any future court hearings.  She made clear that none of her family were aware of the pregnancy or of the birth of TJ, and she did not want that position to change. The Adoption Agency withdrew the placement order proceedings.

12. In May 2016, TJ underwent heart surgery after it was discovered that he had a defect in his heart.  He is said to be thriving in his current placement and meeting his developmental milestones.

13. This application for adoption was then issued on 29 September 2016.

14. On 6 December 2016, PL was adopted by his step-mother, by an order made (under section 51(2) ACA 2002) by Justices sitting in the Family Court.  In those proceedings, the Annex A report had made explicit reference to the existence of TJ, but the Justices gave a direction that – given the mother's wish for confidentiality surrounding TJ – the Annex A report should not be disclosed to the parties.  The adoption then proceeded to final order. 

15. In my judgment, the Local Authority should have sought this Court's guidance on the issue of disclosing TJ's existence to PL and/or PL's father before, or at the point of, filing the Annex A report in the adoption proceedings concerning PL; this could have been done using the Part 19 procedure referred to at [4] above.  Had they done so, the Court could have considered for PL and TJ together the issue of inter-sibling contact, in the context of:

i) section 1(4)(c) of the 2002 Act, namely the "likely effect on [PL and TJ] (throughout [their lives]) of having ceased to be a member of the original family and become an adopted person";

ii) section 1(4)(f) of the 2002 Act: the "relationship which [PL and TJ have] with relatives".

The positions of the parties
16. The Adoption Agency invites me to make the declaration set out in paragraph [3] above.  The social worker makes clear (and I have no doubt of this) that TJ is thriving in the care of Mr. and Mrs. X, and argues that no step should be taken to disrupt that placement.  She recognises the potential benefits of TJ being able to know PL, but believes that the boys may still be able to make contact with each other as adults:

"… I do not think that [TJ] would suffer harm as a result …  It is not uncommon within adoption situations for children to grow up without a full awareness of their birth family and then seek out a relationship with members of their birth family.  The applicants are able to use the life story work that has been prepared for [TJ] in order to assist him in understanding his birth family and the decisions that were made for his life, including his mother's wish to conceal his birth."

Of course, PL would have no reason to believe that he had a half-brother by birth, even though TJ will know that he does.

17. The mother has maintained that she wishes the adoption order to be made "swiftly and smoothly"; she herself has asked for no information about TJ's placement.  She wishes TJ to have a life uncomplicated by any relationships with his birth family.  She is fearful of harassment if PL's father acquires knowledge of TJ's existence.  She is also concerned that if PL's father learns about TJ, he may share this information with members of the mother's family with whom he continues to have a relationship.  She is concerned, as the authority is concerned, that if PL's father is made aware of TJ's existence, this may end up de-stabilising the placement of TJ, and indeed may destabilise her own family life, and her care of EA. 

18. Mr. and Mrs. X are opposed to any sharing of information with PL or PL's family.  They are concerned that if:

"… [TJ]'s existence was made known for the purpose of allowing indirect contact between [TJ] and [PL], there exists the very real possibility that, despite the best of intentions in relation to confidentiality, details of [TJ]'s birth will become common knowledge.  This then brings with it the potential for serious emotional consequences to many people as a result of this information becoming available".

19. That all said, Mr. and Mrs. X have apparently informed the social worker that if required to do so by the Court, but not without huge misgivings, they would be prepared to facilitate indirect contact between TJ and PL (but not direct contact).  The social worker and the Xs have all confirmed that life-story work for TJ will include reference to PL and EA, and in this way TJ will have an understanding of his family relationships, even though PL and EA will not.

20. The outcome contended for by the Adoption Agency, the mother and the Xs is supported by the Children's Guardian.

Discussion
21. Cases which come before the Family Courts involving relinquished babies will arise from widely varied sets of circumstances, and each must be determined on its own facts – a point which I made in Re RA at [31].  In this case, there appears to be no obvious birth family carer for TJ other than his own mother, who rejects such a role.  In that sense, this case is different from Re RA and Re JL.  I am satisfied that the Adoption Agency should respect the clear wishes of the mother not to notify her mother or grandparents of TJ's existence; neither were actively considered as carers for PL, and the difficult relationship between the mother and her mother would not augur well for a secure family placement.  The issue which arises here, therefore, is whether steps should be taken to inform PL's father of TJ's existence in order to create the potential of a relationship between the half-brothers by birth.  Realistically, this would be limited to a relationship of indirect contact only at best if TJ were to stay living with Mr. and Mrs. X.  Any greater degree of sibling relationship would be likely to disrupt, and probably bring to an end, the current placement of TJ.

22. In reaching a conclusion on this issue, TJ's welfare must be my paramount consideration (section 1(2) ACA 2002).  It is of particular importance to note that TJ is well settled with Mr. and Mrs. X; they have nursed TJ through difficult health issues and he is now thriving in their care, where plainly all of his needs are met.  It is in all the circumstances only likely to be damaging or 'harmful' (section 1(4)(e) ACA 2002) to TJ's interests for that placement to be unsettled, or for Mr. and Mrs. X to feel threatened in their care of TJ. That is a factor which weighs heavy in the balance.

23. Placed in the same side of the scale are the wishes and feelings of TJ's mother – these are "important" and "significant", even if not decisive (per Re JL and AO at [47], [48] and [50], and see also Re RA at [43(vi)]), particularly as the mother is the only birth relative with parental responsibility for TJ.  

24. The views of Mr. and Mrs. X are also important and fall in line with the mother's – their views must be brought into account in the context of section 1(4)(f)(iii): see Re W [2016] EWCA Civ 793 at [40], viz:

"it should be self-evident that a prospective adopter with whom a child has been placed under a placement for adoption order will automatically be "any other person" within the context of s 1(4)(f). Such an individual will have the child committed to their care for the express purpose of establishing themselves in the important, if not the most important, relationship of parent to the child both in reality and, if the anticipated adoption takes place, in law. Such an individual will have parental responsibility for the child, shared with the adoption agency and any parent, upon the moment that the adoptive placement commences (ACA 2002 s 25(3))."

The underlying message from the statement of Mr. and Mrs. X is that they would strongly prefer that PL's father is not informed of TJ's existence as a possible prelude to creating a contact relationship between PL and TJ; insofar as they can contemplate it at all, they are however absolutely clear that any contact between TJ and PL would have to be limited to indirect contact.

25. In the context of TJ's "age, sex, background" (section 1(4)(d)), and weighing on the other side of the scale, is the important fact that TJ had a maternal half-brother by birth, with whom he could potentially have some limited contact, even though he would not (by the mother's choosing) ever have the same relationship with (or knowledge of) his half-sister EA.

26. I must consider the extent to which TJ, his mother, PL and the Xs have Article 8 ECHR rights which require respect and protection.  In this regard, I associate myself with the comments of Baker J in Re JL & AO (supra) at [55] where he said this:

"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." (emphasis by underlining added).

27. I am of the view that PL and TJ do not enjoy interlocking Article 8 rights in relation to each other, which require protection.  They have no actual relationship with each other; they have never met and there is no substance to their family relationship.  Moreover, they now have in my judgment no legal relationship one with the other as siblings, given that TJ's mother has been divested of her status as PL's mother by virtue of the adoption order made in favour of PL's step-mother under section 51(2) of the ACA 2002; section 67 ACA 2002 makes clear that PL is to be treated in law as the child of his adopter step-mother and the father, thus severing 'family ties' with all members of his 'original' family (see section 1(4)(c) ACA 2002).  So even if they possessed potential or actual Article 8 rights as a result of the legal relationship prior to PL's adoption (which I doubt), those rights arose from a parent-child relationship, which has now been extinguished by adoption.  In this regard I agree with Peter Jackson J in Seddon v Oldham MBC (Adoption: Human Rights) [2015] EWHC 2609 (Fam) at [2](1) in which he confirmed that the making of an adoption order always brings pre-existing Article 8 rights as between a birth parent and an adopted child to an end. By analogy, the same must be true of relationships between birth siblings/half-siblings.

28. While there exists some potential benefit to TJ in having some contact with his half-brother even if limited to indirect contact, for identity purposes if nothing else, any such order for indirect contact (under section 51 or otherwise) would not be founded upon there being any actual relationship between the boys, and would in those circumstances be highly unlikely in itself to create Article 8 rights.

29. There is no doubt in my judgment that Mr. and Mrs. X currently enjoy vital (in the sense of 'living') Article 8 rights. They stand in the same, or similar position to the adopters in Re W (Adoption: Contact) [2016] EWHC 3118 (Fam), in which I referred (at [20]) to the mutual interlocking Article 8 rights to family life enjoyed by the adopters and their child.  In that case I was referred to Baroness Hale's categorisation of 'parent' in Re G [2006] UKHL 43, specifically drawing attention to her inclusion of 'psychological parent' (including an adoptive parent) as one of the three forms of 'natural parent' of a child.  In the same case, I declared ([60]) that I could not attribute to the family members (the grandparents) any Article 8 rights as such, given that – although linked by consanguinity – they had no actual relationship with, indeed they have of course never even met, the subject child.  It is reassuring to me that Mr. and Mrs. X know of PL's existence and have indicated their intention to inform TJ about PL when TJ is older.

30. This is a case in which (as I observed at [30] of Re RA (Case Management)) the mother wishes to make:

"… dignified and confidential arrangements for the adoption of their child, and are anxious about even the slightest leak of information to the natural family; they often wish to achieve permanence for the child, and finality for themselves, with the minimum of delay"

The mother's wish for a dignified and swift decision is reinforced in the instant case by her stated fear that if PL's father is informed of TJ's existence, the harassment of which she complained in the past will resume.  The Children's Guardian, who saw the mother recently, assessed her as being open and welcoming, and ostensibly genuine in her approach and in her thinking.

31. Having reviewed the various welfare factors, I am persuaded to give effect to the wishes of the mother, and the view of the Mr. and Mrs. X.  I attach considerable significance to the value of the current placement, and the Xs fear of disruption if contact of any kind were ordered.  The limited benefit to TJ of infrequent indirect contact for identity purposes does not outweigh these significant considerations.

32. I can confirm that I will therefore grant the declaration sought by the Adoption Agency.

33. That is my judgment.