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T (A Child) [2017] EWFC 19

Final hearing in contested adoption proceedings where the mother had not been notified of the application for an adoption order or the father’s successful application for leave to oppose because her whereabouts were unknown.

The matter concerned an application for adoption of a four-year old child, who had been living with his adoptive carer for 10 months prior to the carer's application. The father was given notice of the carer's application for adoption and successfully sought leave to oppose the application. During the course of the proceedings, it became clear that the mother had not been served notice of the adoption application because her location was unknown. Inquiries had been made with the embassy of the mother's home country, as it was believed that the mother had left for or been removed from the United Kingdom after a term of imprisonment, but the embassy had no information. No further efforts were made to locate her.

Two days before the hearing, the father's partner was able to find the mother using Facebook. The father's partner subsequently spoke to the mother by telephone and it became clear that the mother had no knowledge of the adoption application; she had been under the impression that the child had been adopted previously. The mother spoke to the father's counsel by phone at the hearing and provided her contact details for the purposes of service.

The court reminded itself of the rules of service set out in 14.3 and 14.5 of the Family Procedure Rules 2010, as well as r.6.36, which allows the court the power to dispense with the service of any document. The court pointed out that r.6.36 must be a judicial decision, based on proper evidence as to the attempts that have been made at service, and at no time had any of the parties invited the court to make this decision.

Further, the Judge admonished both the local authority and the Guardian for not taking sufficient steps to locate the mother. He stated that there must be a positive duty on the Guardian on behalf of the child to seek to ensure that there is proper service on the birth mother. The Judge highlighted in particular how Facebook might be a "route to somebody such as a birth parent whose whereabouts are unknown and who requires to be served with notice of adoption proceedings" [21]. 

Although noting the effect that the delay might have to the child and to the child's prospective adopter, as well as the waste of public and private funds, the Judge held that the hearing had to be abandoned and the matter re-fixed to start from scratch in front of another judge.

Summary by Bianca Jackson, barrister, Coram Chambers

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IMPORTANT NOTICE
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 child and members of his 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.

Neutral Citation Number: [2017] EWFC 19
Case No: MA198/16

IN THE FAMILY COURT
SITTING AT MANCHESTER

IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF: T (A CHILD)


Manchester Civil and Family Justice Centre
1 Bridge Street West
Manchester
M60 9DJ

Date: Tuesday, 14th February 2017

Before:

THE HONOURABLE MR JUSTICE HOLMAN

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Re: T (A Child)
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Transcribed from the Official Tape Recording by
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Suite 204, Kingfisher Business Centre, Burnley Road, Rawtenstall, Lancashire BB4 8ES
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Counsel for the local authority: Miss Samantha Birtles
The mother did not attend and was not represented
Counsel for the father: Mr Zimran Samuel
Counsel for the child: Mr Arron Thomas

Hearing date: 14th February 2017
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JUDGMENT APPROVED

THE HONOURABLE MR JUSTICE HOLMAN:
1. When I began in practice at the Family Law Bar about 45 years ago, there were frequent difficulties with regard to service upon birth parents of proceedings for adoption.  It is, frankly, very depressing that despite all the statutory and rule changes between then and now, and all the accumulated experience of those who practise in this field, the difficulties which I am about to describe can still arise.

2. There was listed for final hearing before me today, with three days allowed, an application to adopt a child.  The child is aged 4.  He is the son of a [X nationality] mother and [X nationality] father who were living together in England at the time of his birth.  For reasons which it is not necessary to refer to for the purposes of this short judgment, the living arrangements of the child with his birth parents broke down.

3. In the final upshot, in December 2015, when he was aged about 3, an order was made placing the child in the care of the Manchester City Council, and then also a placement for adoption order.  The birth parents had been parties to those proceedings but appear only to have played a relatively limited part in them.  Relying upon the placement order, the Manchester City Council placed the child with the present applicant for adoption during April 2016.  So the child has now lived with the applicant for about ten months.  In due course, the applicant issued an application to adopt the child.  This came to the notice of the birth father.  He claimed to have made very considerable changes in his life and lifestyle since the time when his care of the child broke down.  He issued an application pursuant to section 47(5) of the Adoption and Children Act 2002 for leave to oppose the making of an adoption order.

4. At a hearing on 16th December 2016, His Honour Judge Butler granted that leave.  His order recited, amongst other matters, the following:

"The court... is of the view that the father has demonstrated the requisite change of circumstances and, further, that leave to oppose the making of an adoption order should be given."

The same order of 16th December 2016 fixed today as the date of final hearing of the adoption application.

5. There have attended court today the local authority, the father, and the child's guardian, each represented by counsel.  I mention that I am especially indebted to Mr Zimran Samuel, counsel who appears on behalf of the father who, although not acting pro bono, has generously agreed to act for a very low fee as the father's current income has rendered him financially ineligible for legal aid. 

6. It is quite clear that during the course of these proceedings there has been concern about the whereabouts of the birth mother and about service of notice of these proceedings upon her.  There is, indeed, a statement dated as long ago as August 2016 in which the adoption social worker makes reference to attempts made to ascertain the whereabouts of the mother through the [X] embassy.  It was understood that the mother had been removed from, or at any rate had left, the United Kingdom early in 2016 after release from a term of imprisonment.  The [X] embassy apparently said that they had no information as to her presence or whereabouts in [X].  More recently, recital 2 of the order made by His Honour Judge Butler on 16th December 2016 states the following:

"[The child's] mother is understood to be in [X], although the [X] embassy have not been able to confirm her whereabouts."

7. Deeply regrettably, since that order and recital of 16th December 2016, no further attention seems to have been given by, or on behalf of, any party to the issue of notice of these proceedings to the birth mother.  There is absolutely no doubt that even though a placement order was made, the mother, who retains parental responsibility for her child, is someone to whom notice of this adoption application was required to be given.  That follows very clearly, first, from the provision in the statute itself at section 141.  That requires that rules of procedure must require a person, including a person such as this mother, to be notified of the date and place where the application will be heard and of the fact that, unless she wishes or the court requires, the person need not attend.  It is pursuant to the statutory requirement of section 141 that various rules have been made.

8. Rule 14.3 of the Family Procedure Rules 2010 clearly prescribes that a respondent to an application for an adoption order must include, "Each parent who has parental responsibility for the child unless that parent has given notice..." that he does not wish to be informed of the application for an adoption order.  This mother has never given any such notice.

9. Rule 14.5 makes provision in adoption cases for service by the court unless the court otherwise directs.  There is an important footnote to rule 14.5 on page 1647 of the current edition of the Family Court Practice 2016 which states as follows:

"Importance of service on parents – it is fundamental to the making of an adoption order that the natural parent should be informed of the application; the requirement for service is mandatory and the court will be very reluctant to dispense with service on a natural parent..."

10. Certain authorities dating back to 1995 are then cited but, quite frankly, the fundamental importance of service of an application for an adoption order upon a natural parent has been understood by all those practising in this field throughout my own professional lifetime. 

11. Rule 14.15 expressly requires, as required by section 141 to which I have referred, that:

"A court officer will give notice to the parties [which includes the birth mother with parental responsibility] … (a) of the date and place where the application will be heard; and (b) of the fact that unless a person wishes or the court requires, the person need not attend."

12. Rule 14.16 then makes express provision in relation to attendance by somebody such as the mother at the final hearing.  In essence, she may attend and be heard on the question of whether an order should be made, unless she has asked the court for permission to oppose the making of an adoption order and that permission has been refused.  This mother has not, so far, asked the court for permission to oppose the making of an adoption order.

13. The general provisions of the Family Procedure Rules in relation to service apply to the extent that they are not varied or disapplied by the express rules in relation to adoption.  Rule 6.36 gives to the court a power to dispense with the service of any document which is to be served in proceedings.  It can, of course, happen in adoption cases that, after exhaustive attempts have been made to ascertain the whereabouts of a birth parent, the court may finally make an order dispensing with service of notice upon that parent.  That, however, has to be a judicial decision, which must be based on proper evidence as to the attempts that have been made at service. 

14. Frankly, there has been almost total disregard of all the rules to which I have referred in the present case.  The staff of the court did not serve the mother with notice of the final hearing as rule 14.15 requires, but there is no evidence that they made any reference to Judge Butler or any other judge for a direction as to how to proceed.

15. It thus clearly emerged very early on during the hearing this morning that there has, in fact, been no formal notice of any kind of these proceedings to the birth mother in [X].  However, an unusual and unexpected development then occurred.  Mr Zimran Samuel, who appears on behalf of the father, reported that only the day before yesterday, namely on Sunday, 12th February 2017, a telephone conversation had taken place between the father's current partner, who is also [X nationality], and the birth mother who now lives in [X].  That was recorded on the father's partner's telephone and a relatively verbatim English translation of it has been made and is available for any court with a proper interest in this issue later to read. 

16. The upshot is that, until that phone call, it appears that the birth mother did not have the slightest idea of the current existence of these adoption proceedings and, indeed, she mistakenly thought that her son had been adopted long ago.  She is reported in the telephone conversation as saying that the judge at the care hearing in December 2015 had told her that the child would be adopted in about four weeks.  I very much doubt whether the judge did say that; but at all events, the mother says that that was the understanding that she took from that hearing.

17. During the course of today, Mr Zimran Samuel himself has now twice spoken on the telephone to the birth mother in [X] and established from her a clear postal address and also an email address at which she can be communicated.  The father's partner says, and has now given sworn evidence to this effect, that the manner in which she first made contact with the birth mother was through Facebook.  She says that neither she nor the father had any line of communication with the mother, but that last Sunday she did a very simple search into the public Facebook website, and in a matter of clicks identified the Facebook address of the birth mother.  She then sent a message through Facebook asking the birth mother for a telephone number on which she rang her.

18. The local authority and the guardian are both highly sceptical as to that account and they say that Facebook searches made today do not readily lead to the mother.  The father's partner says that the explanation for that seems to be that between Sunday and now the mother seems to have changed the name that she uses in relation to herself upon Facebook. 

19. If the account by the partner is a true one, it seems to follow that each of the local authority and the guardian could, in fact, relatively easily themselves have established a line of communication with the birth mother through Facebook.  This morning, Mr Arron Thomas, who appears on behalf of the guardian, indicated that CAFCASS guardians are absolutely forbidden from making any attempt to communicate with people via Facebook.  Indeed, he said this morning that it would be a significant disciplinary matter if the guardian had done so.  This afternoon, having investigated that further at my request, Mr Thomas said that that is, in fact, no longer the position.  As he now understands it, and as I now understand it from Mr Thomas, there is no rule or embargo against CAFCASS officers seeking to identify the whereabouts of persons for the purpose of proceedings such as this by a Facebook search.

20. On behalf of the Manchester City Council, Miss Samantha Birtles also confirmed to me this afternoon that there is no prohibition or embargo upon social workers doing a Facebook search of this kind.

21. So I do wish to highlight by this short judgment that, in the modern era, Facebook may well be a route to somebody such as a birth parent whose whereabouts are unknown and who requires to be served with notice of adoption proceedings.  I do not for one moment suggest that Facebook should be the first method used, but it does seem to be a useful tool in the armoury which can certainly be resorted to long before a conclusion is reached that it is impossible to locate the whereabouts of a birth parent.  Of course, not everyone is on Facebook but, in this particular case, a relatively socially disadvantaged young mother in [X] has been found very rapidly by that means.

22. It is concerning that the local authority did not pursue other avenues to try to locate the birth mother apart only from enquiries of the [X] embassy.  It is not possible fully to follow this through today, but certainly in the transcript of the telephone conversation with the father's partner on Sunday, the mother twice asserted that she had given her address in [X] to the social worker who was the social worker at the time of the care proceedings.

23. As normally happens, when the placement order was made and the child was placed for adoption, responsibility within the local authority passed from the care social workers to the adoption social workers.  It is not clear to me that much attempt was made to refer back to the social worker at the time of the care proceedings to see if, indeed, she or her files could reveal or illuminate the whereabouts of the mother.  It seems to me also that, in a situation such as this, there must be some concurrent duty upon a guardian to seek to ensure that there is proper service on the birth mother.  As the very unfortunate course of this application indicates, it can only be potentially damaging to the child or children concerned if there are added delays due to an initial failure to achieve service upon a birth mother.

24. There is already expert psychological evidence in this case as to the strong and growing attachment that the child has formed with the applicant.  So far, the child has been with the applicant for ten months; but, with every month that passes, that attachment is likely to grow stronger, which will make the task of removing or detaching the child from the applicant increasingly hard and potentially damaging if that is the final decision of the court.

25. Today, Mr Thomas has said that the guardian "assumed" that the mother had been served and that it came as a complete surprise to her to learn in court today that she had not been.  In view of the recital to the order of 16th December 2016, which I have quoted, that seems to have been a somewhat unsafe assumption to make, since the recital was plainly indicating a lot of uncertainty as to the whereabouts of the mother at any rate as recently as mid December 2016. 

26. So this is a deeply regrettable state of affairs.  Section 1(3) of the Adoption and Children Act 2002 spells out very clearly that:

"The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare."

27. As I have already indicated, the welfare of this child is indeed likely, if not bound, to be prejudiced by a further delay in resolution of this application.  But the fact is that it concerns the very significant and very final matter of adoption.  The whereabouts of this birth mother are known, and it seems to me that they could easily have been ascertained sooner if a little more effort had been directed to the search.  The provisions of the statute and rules to which I have referred make it absolutely mandatory that she be served and given a proper opportunity to participate in the proceedings.  It was only two days ago that she, in [X], first learned from the adventitious telephone call of the father's partner even of the existence of these adoption proceedings.

28. So, notwithstanding the potentially damaging effect upon the child of the delay, and notwithstanding the enormous and deeply regrettable waste of both public and privately funded expenditure; and notwithstanding the upset, to the point perhaps even of grief, that this may cause to the applicant, I must abandon the present hearing.  It will have to be re-fixed to start from scratch before another judge, as I am only temporarily sitting in Manchester, allowing a sufficient time for proper service upon the mother.

[Judgment ends]