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M & N (Twins - Relinquished Babies - Parentage) [2017] EWFC 31

Judgment of Cobb J in respect of twins making care orders and orders under section 21 ACA 2002 authorising the local authority to place them for adoption.

The case concerned twins, M and N, who had been relinquished by their mother, A, at birth, as she was unable to emotionally or financially care for them. The putative father, B, also agreed for the children to be adopted, and neither parent had any contact with the children after they had been born. Neither party was present nor represented in the proceedings.

The local authority made four applications in respect of M and N. First, it sought a declaration that B was the father of M and N, pursuant to s.55A of the Family Law Act 1986. Second, it sought a declaration that it need not notify, let alone investigate or assess, any extended family member of the mother or the father as potential carers for the children. Third, it sought a care order in respect of both children under s.31 of the Children Act 1989. Finally, it should a placement order in respect of both children pursuant to s.21 of the Adoption and Children Act 2002.

The court was not satisfied to the civil standard on the evidence before it that the local authority had proven that B was M and N's father. The local authority evidence relied solely on comments made by the mother and the putative father, and the parents were never advised that reliance would be placed on their assertions about parentage to prove it. As such, Mr Justice Cobb held that the children could be advised that A identified B as their father but he would not make a declaration to that effect.

Whilst reiterating that a "high degree of justification" is required before a court can determine whether a child should be adopted, Mr Justice Cobb held that on the facts of the case, he attached "significant weight" to the views and wishes of A and B. He was therefore satisfied that that there was a proper basis for granting the declaration that the local authority was not required to notify, let alone investigate or assess, any extended family member of the mother or the father as potential carers for the children.

Finally, the court considered the local authority's applications for care and placement orders. Mr Justice Cobb found that the threshold for the making of orders was made out on the basis that: (i) neither the mother nor the putative father had any relationship with the children; (ii) neither the mother nor the putative father sought, or wished, to have any relationship with the children, or to offer care to the children; (iii) neither the mother nor the putative father sought any contact with the children; and (iv) neither the mother nor the putative father proposed or made arrangements for any alternative family placement, and that this is not what it would be reasonable to expect a parent to give to the children. Considering the children's welfare as his paramount consideration, as well as their Article 8 right to respect for family life, the court held that the mother's consent should be dispensed with (she had not provided consent on the appropriate form) and care and placement orders should be made.

Summary by Bianca Jackson, barrister, Coram Chambers
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Neutral Citation Number: [2017] EWFC 31
Case No: LS17C00184

IN THE FAMILY COURT
SITTING IN LEEDS


Coverdale House
East Parade
Leeds

Date: 24/05/2017


Before :

THE HONOURABLE MR. JUSTICE COBB

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Re M & N (Twins: Relinquished Babies: Parentage)
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John Wood (a solicitor of JWP Solicitors) for the Local Authority
Jennifer Heckingbottom
(a solicitor from Switalskis) for the Children's Guardian
The mother and father were neither present nor represented

Hearing dates: 9 May 2017
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Approved Judgment
I direct that copies of this version of the judgment as handed down may be treated as authentic.

.............................

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. M (a girl) and N (a boy) are twins, who were born in November 2016, and are therefore now six months old.  They are healthy infants making good developmental progress.  They are currently in foster care, and subject to interim care orders in favour of Kirklees Metropolitan District Council ("the Local Authority").

2. These twins were relinquished by their mother ('Ms A') at birth for adoption.  The putative father ('Mr B') does not have parental responsibility for the children; he has nonetheless indicated that he supports the mother in her wish for the children to be placed permanently in an adoptive home.  Neither parent is present or represented at the hearing before me.

3. The Local Authority has made applications to the Court for the following orders:

i) For a declaration under section 55A of the Family Law Act 1986 that Mr B is indeed the father of M and N; this is not required as part of any legal process engaged here, but the application has been made in order to achieve clarity to support life-story work for the twins;

ii) For a declaration (on an application issued under Part 19 FPR 2010, in accordance with the guidance in Re RA (Baby Relinquished for Adoption: Case Management) [2016] EWFC 25: see [50/51]) that it need not notify, let alone investigate or assess, any extended family member of the mother or the father as potential carers for the children;

iii) For a care order under section 31 of the Children Act 1989 ("CA 1989") (application dated 3 March 2017)'

iv) For a placement order under section 21 Adoption and Children Act 2002 ('ACA 2002') (application dated 4 May 2017).

4. The children are automatic respondents to the applications for care and placement orders ([3](iii) and [3](iv) above).  They have been joined as respondents to the application for a declaration as to parentage ([3](ii)), and are represented in all of the applications by their Children's Guardian in accordance with Part 16 FPR 2010.

Background

5. I propose to give only the barest details about the background of this case, given the mother's wish for discreet arrangements to be made for the adoption of the twins.

6. Ms A is a divorced professional person in her 40s, with an older child whom she cares for; Ms A and her former husband divorced in September 2015 well before the conception of the twins, and he therefore has no status in this application.  Little is known of the relationship between Ms A and Mr B; they do not currently reside together though they maintain contact.  They appear to have ended their intimate relationship some months before the birth of the twins.   The Local Authority have had cause to assess Ms A as a parent in the past, and she is demonstrably a good mother to her older child.  Ms A has indicated that she could not financially, or emotionally, cope with the care of one or more additional children.

7. The putative father, also believed to be in his 40s, is not named on the children's birth certificates, and – as earlier indicated – he does not have parental responsibility for them.  He maintains that he was, indeed, unaware of the birth of the twins until he was contacted by the Local Authority early in February 2017.  While he says that he had known that the mother had become pregnant in 2016, he had believed that the mother's pregnancy had been terminated.  He no longer lives locally to the mother.  He has confirmed that he is not able or willing to care for the twins, because of his age and circumstances, and although he was initially opposed to the plan that they be placed for adoption, he has since indicated (having apparently discussed the matter with the mother) that he considers that this is the best outcome for the infants.

8. The mother concealed her pregnancy until only two weeks before the birth; she first contacted ante-natal medical professionals at her GP surgery when she was approximately 38+ weeks gestation.  In the days which followed, her engagement with midwifery and social care services was intermittent, though she attended punctually for the pre-planned delivery by caesarean section on the appointed day.  She made it known from the first contact with medical professionals that she wished for her baby/ies (initially she did not realise she was expecting twins), to be adopted.  Immediately following their birth, she requested for them to be placed in foster care, and signed the forms consenting to their accommodation under section 20 of the CA 1989.  She later named the twins, and registered their birth in early December 2016, but has not seen them since the day of their birth.  She has largely avoided contact with professionals since the birth; on those occasions when she has been contacted, she has remained resolute that she wishes the twins to be adopted. 

9. These babies do not have an extensive wider family network.  The mother has a sister with older children; the mother's parents are reasonably believed to be in their mid-late 60s (possibly older).   It is not entirely clear to me whether Ms A's parents are aware of the birth of the twins or not.  The social work evidence is inconsistent on this point, and it was not clarified satisfactorily at the hearing. The problem lies to some extent in the fact that the mother has not co-operated with invitations to discuss the situation and has not provided any addresses or contact details of the extended family members.

10. The father is an only child whose parents are deceased.

11. The social worker last actually met with Ms A on 30 December 2016.  The social worker last met Mr B on 30 March 2017 when she hand-delivered documents to his home.  The Children's Guardian has not been able to meet with either parent, despite attempts to do so.

12. The application for the care order was made on 3 March 2017.  I was concerned about the delay in launching these Part IV CA 1989 proceedings; Mr. Wood explained that the Local Authority had been trying to engage the parents in providing consents for the placements for adoption, using the authorisation which would in those circumstances be available under section 19 ACA 2002, and only when those efforts failed were proceedings issued.  I accept that position in general terms, but would urge local authorities in situations such as this not to delay in issuing proceedings, particularly where – as here – the children are not placed in an 'Early Permanence Foster Placement'.  Every day counts. 

13. It is re-assuring to note that there are many potential adoptive couples who would be keen to care for these twins.

Involvement of the parents in the hearing
14. This case was listed before me for determination of the applications at [3](i) and (ii), and for Early Final Hearing (PD12A FPR 2010: Stage 2 Case Management) of the applications at [3](iii) and (iv).  Given the low levels of engagement of the parents with professionals, I wished to satisfy myself that all appropriate steps had been taken to notify them that this was indeed the final hearing.  There has been periodic exchange of e-mail and other correspondence, which reassures me that the parents were kept abreast of the progress of the litigation.  I am satisfied that on 3 May 2017, the solicitor for the Local Authority sent to the parents a letter confirming that the Agency Decision Maker had ratified the plan for adoption, and containing the date of this hearing as the final hearing, urging them to obtain legal advice; the mother confirmed that the parents had indeed received the letter.  Other correspondence has confirmed the nature of the evidence before the court, and the decisions which need to be made.

Declaration of parentage

15. First, the Local Authority seeks a declaration that Mr B is the father of the twins.  This application is brought under section 55A Family Law Act 1986 which provides that "any person may apply to the High Court or the family court for a declaration as to whether or not a person named in the application is or was the parent of another person so named".  Given that the Local Authority has parental responsibility for these twins under section 38 CA 1989, I am satisfied (per section 55A(3)) that they have "a sufficient personal interest in the determination of the application".

16. In order to make the declaration, section 58 of the 1986 Act requires me to be satisfied of the "truth of the proposition to be declared".  The evidence before me, on which the Local Authority relies, to support this contention is:

i) That the mother and her husband separated some years ago, and were divorced by decree absolute in September 2015; Ms A's former husband should not realistically be considered as a putative parent of these children;

ii) The mother has informally and consistently named Mr B as the father; she did not, however, formally register him as such on the children's birth certificates;

iii) Mr B appears to accept that he was in a relationship with the mother at the time when she conceived;

iv) Discussions between social work professionals and Mr B have been predicated on the basis that he is the father of the twins; he has actively considered the issue of future placement of the twins; he has not sought to argue or contend that he is not the father;

v) Mr B specifically referred to the twins as "my children" in a telephone discussion with the Children's Guardian on 15 March 2017.

17. The Local Authority wished to commission DNA testing of the putative father and children, in order to resolve the question of paternity beyond any reasonable doubt, but could not obtain the necessary co-operation or consent from Mr B.

18. There can be few things more important to a person than to know of their parentage; this is, or may be, just as important (indeed it may be more important) for adopted children as it is for children who are raised within their natural families.  In this regard, I have noted and endorse Hogg J's comments in M v W (Declaration of Parentage) [2006] EWHC 2341 (Fam), [2007] 2 FLR 270 at [20]:

"it is thought good practice and beneficial to an adopted child to have information relating to his birth family. Life story books are prepared carefully by social workers and others and left in the adoptive home so that an adopted child can be encouraged and enabled to acquire as much information as is possible as to the natural birth family from which he or she came. It is an important part of enabling an adopted child to be confident as to his or her status and to know as much about his or her background as is possible". (emphasis by underlining added)

19. If the evidence is available on which I can be satisfied to the civil standard that I can make a declaration that Mr B is the father, then I recognise that I should not hesitate to do so. However, I also recognise that I would be doing the children a great disservice if I was to name Mr B as the father, if in fact he is not so. 

20. In this case, the Local Authority have pieced together comments made by the mother and putative father (rehearsed in [16] above) to seek to prove their case on parentage.  I am not satisfied that these comments, however superficially persuasive, justify a finding of the significance sought.  I feel that I must exercise caution in this context, particularly given that neither Ms A nor Mr B were ever advised that reliance would be placed on their assertions about parentage to prove this critical fact.  I, of course, note that when given the opportunity to do so, Ms A did not in fact name Mr B as the father on the birth certificate.

21. In the circumstances, for life-story purposes, the children can surely be advised that Mr B was the man identified by the mother as their father; there simply will not be a declaration to that effect.

Declaration that no other family member need be notified

22. This is, I am satisfied, a case in which Ms A and Mr B wish to make dignified and confidential arrangements for the adoption of their twin children.  They wish to achieve permanence for them, and finality for themselves.  On the information available to me, I am satisfied that Ms A is a mature and thoughtful woman who has legitimate reasons for not wishing to care for the twins.  She is clear that she does not want her sister or parents to care for the twins, given (respectively) their commitments, and their age.  

23. As I indicated in Re RA (Case Management) (above) at [31], each case must be considered on its own facts.  In this case, the facts are sparse.  What we do know, or believe we know, is that:

i) There are few extended family members who could be considered as carers;

ii) There are no extended family members on the paternal side;

iii) The maternal grandparents are of an age (although we do not know their precise age, the mother is in her 40s), which would be likely to exclude them as long-term carers for twin babies;

iv) The maternal aunt has commitments to older children;

v) That the mother – a thoughtful and mature professional woman – has indicated clearly her intolerance to the notion of the children being raised within her own family.

24. I do not depart from what I said in Re RA, namely that a "high degree of justification" is required before a court can determine whether a child should be adopted (see Lord Wilson in Re B (Care Proceedings: Appeal) [2013] 2 FLR 1075 at para 34). It is, as Baker J observed and I agree, still necessary to undertake a 'thorough analysis of the realistic options' for the baby applying the relevant section 1(4) factors to the individual facts of the case: see Re JL & AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam) at [50]:

"the wishes and feelings of the parents are likely to carry significant weight in the evaluation of the child's welfare. But they are not invariably decisive. As a result, the local authority cannot give any guarantee that it will keep the existence of the baby confidential. Each case will turn on its own facts. In some cases, an analysis of the circumstances will lead the local authority to conclude that it is unnecessary to inform the natural family, but in other cases the authority will decide that it must consult the extended family in order to carry out the necessary evaluation of the realistic options. Each case turns on its own facts, but the child's welfare will always be the paramount consideration".

At [55]:

"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".

And at [56]:

"… 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." (emphasis by underlining added).

25. On these facts, I do attach "significant weight" to the views and wishes of Ms A and Mr B; quite apart from parental opposition to a maternal family placement (which would bring complications all of its own) I am satisfied that the prospects of a maternal family placement are sufficiently unpromising on the information available as to exclude them as future carers.  I have reached the further view that formally notifying the maternal grandparents and/or aunt of the existence of the twins would be a purposeless exercise, but one which would significantly infringe the Article 8 rights of Ms A to respect for her private life.  I am therefore able to state that there is a proper basis for granting the declaration that the Local Authority is not required to notify, let alone investigate or assess, any extended family member of the mother or the father as potential carers for the children.

Care and Placement order

26. The Local Authority contend that the threshold criteria for the making of a Part IV order (see section 31 CA 1989) is established on the basis that the twins would be likely to suffer significant harm attributable to fact that:

i) Neither the mother nor the putative father have any relationship with the children;

ii) Neither the mother nor the putative father have sought, or wish, to have any relationship with the children, or to offer care to the children;

iii) Neither the mother nor the putative father has sought any contact with the children;

iv) Neither the mother nor the putative father has proposed or made arrangements for any alternative family placement,

and that this is not what it would be reasonable to expect a parent to give to the children.

27. I agree that this formulation on the evidence satisfies the statutory 'threshold' in this case, permitting me to proceed to consider the range of orders available under Part II and Part IV of the CA 1989. 

28. My paramount consideration is the welfare of these twins, throughout their lives.  In reviewing this, I have considered the wider 'welfare checklist' contained in section 1(4) of the ACA 2002 given that this is an application made under the CA 1989 and the ACA 2002: (see In re C (A Child) (Placement for Adoption: Judicial Approach) [2013] EWCA Civ 1257, [2014] 1 WLR 2247, [2014] 2 FLR 131, paras 29-31, Re R (A Child) [2014] EWCA Civ 1625, para 20 and 51).

29. Of the factors set out in section 1(4) ACA 2002, I am particularly drawn to section 1(4)(c), the likely effect on the twins (throughout their lives) of having ceased to be a member of the original family and become an adopted person, section 1(4)(d), their age, and the background circumstances in which they come to be considered for adoption, and of course section 1(4)(f)(iii) (read with section 1(8)(b)), the wishes and feelings of these parents.

30. I have considered with care the rights of the children under Article 8 ECHR to a respect for their private and family life; their rights to an upbringing within their natural family on these facts clash with their mother's right to respect in the making of discreet arrangements for their adoption so as to enable her to prioritise her responsibilities to her older child. While the children will inevitably lose the right to a family life with their birth parents, they are nonetheless entitled to establish a secure family life with prospective adopters with the minimum of additional delay or impediment (see YC v United Kingdom (Application No 4547/10) [2012] 2 FLR 332, ECHR).

31. In reality, on these facts, adoption is the only realistic and proportionate option; in truth, nothing else is realistically available or congruent with their best interests.

32. Although the mother has made her position on the adoption of babies clear, she has not signed the formal consents to their adoption.  I must in the circumstances therefore consider whether (or not) I can dispense with her consent, applying section 21(3)(b) and section 52(1)(b) of the ACA 2002 as explained in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625: "the welfare of [the twins] requires the consent [of this mother] to be dispensed with".  It is clear on the facts that the welfare of the twins does indeed require the dispensation of the mother's consent.

33. A final word about the involvement of the Children's Guardian.  She has reviewed all the material filed in this case.  She has been unable to meet with the parents to discuss these proceedings, as she had wished, but has spoken with the putative father on the phone.  She feels able to support the making of care and placement orders.

34. I am satisfied on all that I have read and heard that it is in the interests of the children that they are indeed made the subject of care orders, and orders under section 21 ACA 2002) authorising this local authority to place them for adoption with any prospective adopters who may be chosen by the authority.

35. That is my judgment.