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A Local Authority v Y [2017] EWFC 69

Application by local authority deemed by Mrs Justice Theis to be under the Family Procedure Rules 2010, Rule 14.21, invoking the Part 19 procedure to seek the Court’s guidance regarding any further steps the local authority should take in relation to a child placed in a foster-to-adopt placement at birth under a s20 agreement.

This matter concerns X, a girl aged four months. The mother of X was 18 years old at the time of X's birth and the identity of the father was unknown to the local authority.

Background
The mother maintained that she sought for X to be adopted, despite reporting at one stage that she was 'changing her mind' and seeking contact. Her position was that she wanted X to have a better life than that which she could offer. X was placed in a foster-to-adopt placement at birth under a s20 agreement.

The mother stated that X's father knew of the pregnancy but did not wish to be involved, believing that she was having an abortion. Their relationship had lasted some six months and the mother alleged domestic abuse during the pregnancy. She felt that the father would react negatively, and possibly to the detriment of X, should he be informed of the birth. 

Current application
The local authority subsequently made an application seeking 'consideration of birth father's Article 6 and Article 8 rights'. This was deemed by Mrs Justice Theis to be an application under the Family Procedure Rules 2010, Rule 14.21, invoking the Part 19 procedure to seek the Court's guidance regarding any further steps that the local authority should take in relation to X.

The mother repeatedly waived her right to legal representation. The Court was however satisfied that the mother had received support and advice both from the local authority and the guardian. A Section 19 'consent for adoption' form and Section 20 'advanced consent to adoption' form were both signed in the presence of the guardian.

The mother refused to disclose details that would permit the father to be traced. The father was not named on the birth certificate and did not have parental responsibility. The guardian's view was that X would benefit from knowing details of her paternity but that he respected the mother's right not to disclose that information.

Mrs Justice Theis endorsed Re L [2007] EWHC 1771 (Fam) which sets out the duties under the Adoption and Children Act 2002 when an order is made without the consent of, or notice to, a father who does not have parental responsibility. Although the mother's right to maintain confidentiality was maintained in that matter, it was noted that the Court has the power to direct that a father may be joined as party to proceedings.

The father's Article 8 rights were considered, as was X's need for knowledge of her identity. It was noted that the father had made no further enquiries about the pregnancy or the mother's welfare. The local authority were not required to take any further steps to notify or locate the father.

Annual post-adoption contact was put in place between the mother and X. The mother had stated that if X asked her to do so, she would provide details of X's paternity. The mother was urged to continue reflecting upon her position, particularly in circumstances whereby it might be too late to achieve meaningful contact by the time that X made those enquiries.

Summary by Lyndsey Sambrooks-Wright, barrister, 2 Dr Johnson's Buildings
_______________________________________

This judgment was delivered in private.  The judge has given leave for this version of the judgment to be published. 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.


Case No: SD17C00119
Neutral Citation Number: [2017] EWFC 69

IN THE FAMILY COURT
SITTING AT ROYAL COURTS OF JUSTICE

Date: 14th March 2017

BEFORE:

MRS JUSTICE THEIS DBE

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BETWEEN:

A Local Authority
 Applicant
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Y Respondent
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Ms Johanne Simmonds (solicitor advocate) appeared on behalf of the Applicant Local Authority
Respondent Mother appeared as a Litigant in Person
Ms Penny Logan for Cafcass Legal
appeared on behalf of the Child via the Guardian
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Judgment

Mrs Justice Theis:
Introduction

1. The Court has before it an application made by the Local Authority dated the 24th January 2017 whereby it sought, and I quote:

"Consideration of birth father's Article 6 and Article 8 rights." 

It is accepted by Miss Simmonds, who appears on behalf of the Local Authority, that this is, in effect, an application under the Family Procedure Rules 2010, Rule 14.21, invoking the Part 19 procedure to seek guidance from the Court in relation to what further steps, if any, the Local Authority should take in relation to a little girl and their plan to place her for adoption.

2. The parties to the case are the Local Authority, X's birth mother (the mother) and X who is a party in her own right, represented through her children's guardian, Mr Shone,  by Miss Logan on behalf of Cafcass Legal.  The mother does not have the benefit of legal advice.  The Court has done its best, as have the other parties, to enable her to get such legal advice if she wanted it but on each occasion she has been clear, as she is perfectly entitled, to say she has considered the request and would prefer to be able to represent herself.

3. The court has had concern about that because of her relatively young age (she was 18 at the end of last year) and the nature of the proceedings. I am satisfied, from the two occasions that I have seen the mother, she has had the opportunity to be able to consider all the documents the court has, including the skeleton arguments that have been sent to her. She has spoken with eloquence and clarity about her position, about which she has remained entirely consistent.  So, despite the nature of the application and her relatively young age, I do not consider the court should consider delaying this matter any further to give her another opportunity to seek legal advice, as I am satisfied she has been given every opportunity for that to be done and for the reasons she has given, she has chosen not to take that up.

Background
4. This case concerns a little girl, X who and is now four months of age.  Her mother  was just 18 years of age at the time of X's birth.  The mother has not identified the birth father.  According to her, he is white British, had been adopted himself and they separated after the relationship had lasted about six months.  He knew she was pregnant.  He did not support the pregnancy continuing, as far as he knew she was going to have a termination.  In fact she did not as, according to her, it was too late for it to be done other than by way of a surgical procedure, which she did not wish to take place. She decided to continue with the pregnancy, but with only limited members of her family knowing about the position..

5. In July 2016, the mother and her mother, TT, contacted the Local Authority reporting that she was pregnant.  That was discovered following a scan on the 13th July 2016 which established that her pregnancy then was about 19 weeks.  She wished for her baby to be adopted. The case was transferred to the Duty and Assessment Team for allocation and pre-birth assessment. At that time, the mother did not want to disclose the name of X's father. A social worker was allocated, DS, and she saw the mother on three occasions in August, on two of those occasions with her mother, TT.

6. During those visits, the mother was clear she had not been pressurised to relinquish the baby.  She was unable to care for the baby at her mother's home, due to the lack of space, she felt she was too young and unable to provide the baby with the love that she would receive from two parents. She considered that her child would be better off with a new family. This is the position she has maintained, and she did not want the birth father to know. She reported the birth father's reaction to discovering she was pregnant had been to storm out, prior to that he had researched ways for her to be able to have a miscarriage and had, in the early stages, on one occasion slapped her in the stomach.

7. The outcome of the initial assessment by the Local Authority was to transfer the case to the Looked After Children's Team and the Adoption Team.  At that stage, the mother had the benefit of being allocated a social worker in her own right, MY, who has provided a statement dated the 17th November 2016.  She had two meetings with the mother and TT prior to X's birth, in one they were accompanied by the adoption social worker.  Those meetings were to explore her reasons for her decision, to discuss the process that would take place and consider again her position in relation to identifying the birth father.  The mother remained clear she did not want him to be informed, she wanted the confidentiality that she had kept in relation to her position to be maintained. 

8. On the day of X's birth the mother informed MY, who visited her at the hospital, that she wished to proceed with the plan they had discussed previously.  She was content to remain on the ward with X until she, the mother, was ready for discharge.  She was discharged later that day and X was placed with her current carers, a foster adoptive placement under Section 20 of the Children Act 1989.

9. The mother contacted her social worker, MY, on the 6th December asking when she would hear from Cafcass as she was, according to MY's statement, and I quote, "changing her mind."  At a meeting the next day, the mother said she wanted to know when she would meet with Cafcass to sign the forms.  She acknowledged candidly her mixed emotions at that time, that was missing X, wanting to hug her but was clear she had no intention of wanting to separate X from her current carers and remained clear she wanted X to have a better life than she felt able to give her.  She also referred, at that meeting, to tensions in the family home due to the difficult relationship she had with her stepfather. 

10. A match of the foster carers with X was due to be considered by the Local Authority adoption panel on the 14th December 2016, but on a preliminary review by the legal advisor on the 8th December it was considered the matter should not be put before the panel as the papers indicated the parents had a relationship for about six months, there was a lack of clarity as to whether the father knew of X's existence and it raised issues relating to the Article 6 and 8 rights of the parents and X.

11. In the meantime, the mother had requested to see X, that meeting took place on the 20th December.  When the social worker, MY, met her prior to that visit she asked for more information in relation to the birth father and in her statement she sets out what the mother said, as follows:

"Mother explained that when she was certain of the pregnancy she and her mum met with the birth father and his mother and made them aware.  Mother says the birth father's mum told her she could not allow mother to visit their house 'in that condition' and that the birth father said he wanted nothing more to do with mother.  Mother told me it was 'understood' between them all that she would seek a termination.  Mother said she and her mother looked into this but found she was too many weeks pregnant to just take a pill and she would have to travel to London for a surgical procedure.  Mother said she did not want to have that type of procedure.  Mother told me, 'They have assumed I have had an abortion.  They do not know I kept the baby'."

12. It continues:

"Mother said that she was worried that birth father would say he wants P 'then dump her just to mess things up'.  Mother said she was worried that she would then be left having to look after P.  Mother said she knew his surname but she was not sure where he lives.  She said they had split up around March 2016 before the pregnancy was a certainty."

13. The mother had one further contact with X in February 2017.  The Local Authority made an application on the 24th January 2017 seeking further directions from the Court as to what steps, if any, should be taken by them to notify the birth father of the plan for X.  He is not named on the birth certificate, so does not have parental responsibility.

14. The matter came before the court on the 17th February when directions were made for X to be joined as a party and Mr Shone to be her guardian, the matter was listed before me on the 24th February 2017.  The mother has attended the hearings.  The Local Authority was represented, but there was no representation for X for reasons which were not clear.  I am enormously grateful to Cafcass Legal who stepped in at very short notice and agreed to represent X in these proceedings, to avoid any further delay. Very helpfully, her guardian remained the same person, Mr Shone.

15. At the initial hearing before me I directed the mother to file a statement setting out specified matters, in particular her relationship with X's father, the circumstances of the pregnancy, the reasons for her decision to place X for adoption, not wanting to name the father, not wanting the father to be informed and lastly whether she would agree to her family being spoken to about the identity of the father and if not, why.  I made directions requiring position statements to be filed and listed the matter for further hearing today.

16. The mother's statement has been signed today.  In that statement, she describes her relationship with X's father. When she first discovered she was pregnant he had helped her write a letter to her mother to tell her about the pregnancy. That had resulted in the meeting taking place as described in MY's statement with the respective mothers, the mother and the birth father. The meeting ended, according to mother's statement, with her having to inform the father's mother when she had booked an appointment to have a termination and she said the father had stormed out.  She said her relationship had continued but according to the mother, he looked at ways to enable her to lose the baby and hit her in the stomach.

17. She sets out in her statement, a few months' later he went away for a week and she started having morning sickness.  She said they started arguing when he returned and they separated.  The mother went to her GP who thought that she may have a tumour, sent her for a scan and that was when she found out she was about 18 or 19 weeks pregnant.

18. Through what the mother told me today, it is likely the separation was probably a little bit earlier than perhaps the indication given in her statement.  It was probably around March or April, soon after the mother discovered she was pregnant with a pregnancy test, although the pregnancy was not finally confirmed until the scan that took place following the referral by the GP.

19. Turning to what the mother said in her statement in relation to her reasons for adoption, she said as follows:

"The reasons why I put X up for adoption is because my mum, TT, said that she would have to kick me out so I would be on the street with a newborn baby and I did not want to bring her up on benefits and last of all I want her to have a life that I probably never have.  I want X to explore the world.  I also want X to be loved and cared for.  I do not think I could do that."

20. In relation to her reasons for not wanting to name X's father, she said:

"My reasons for not wanting to name X's father are as follows.  He is good at telling lies, for example he lied about having testicular cancer just so he could send a girl a picture.  He still has pictures of me on his phone which he will not delete and as I have previously mentioned both himself and his mum are not interested.  They have no idea about X being born.  He would just swan in and out of X's life and I do not want that.  As far as I gather from MY, social worker, X is settled and happy.  She has been there since birth."

21. As far as her contacting her family she said:

"I do not agree to it.  I do not agree on it because all of the family that know I have had X all have X's interests at heart and nobody knew his last name or where he lives."

22. She concludes as follows:

"Also, one other thing.  He ruined my career wanting to work with children by posting on social media that all I did in our relationship was abuse him.  I have proof of this, when he was the one hitting me in the stomach to get rid of a child.  I do not want this for X."

23. The mother signed that statement today, without any amendments.

24. Mr Shone's helpful and perceptive report dated the 10th March 2017 reports on the meetings that he has had with the mother on the 17th January and the 17th February.  In his presence, she has signed the Section 19 consent for adoption form, the A101, and the Section 20 advanced consent to adoption form, A103.  He has witnessed both of those signatures and describes in his report that he is satisfied she understood what she was signing, she did so freely and unconditionally and decided not to take legal advice.  The mother was also clear that she did not want to be informed about any adoption application.

25. He sets out in his report how he discussed with the mother the advantages and disadvantages, particularly from X's perspective, about not revealing the identity of X's father.  He discussed the issue further with her on the 6th March and asked whether she would agree with the guardian speaking to her mother.  It was left that she would think about it and, if necessary, her mother would contact him, he has not heard anything since.

26. In considering X's welfare, he said as follows at paragraph 6:

"I have considered carefully from a social care and welfare perspective the position of the mother regarding nondisclosure of X's father's identity and her rationale as stated to me and detailed in her statement.  I genuinely believe she feels she is making the right decision for her daughter.  I have thought carefully from X's father's perspective about the range of views he may have in regard to X, his future relationship with her, his wishes for her future care and welfare, the impact on him and the wider paternal family of being denied an opportunity to be told of her existence, being denied an opportunity to play a role significant or otherwise in X's life, develop relationships with her and crucially afford her a feeling of familial belonging.  I have also thought carefully about the paramount consideration of X's best interests now and throughout her lifetime.  I have been troubled by the fact that X may be denied the potential opportunity to be afforded permanence with her father or within her wider paternal family, denied a relationship with her father and her wider paternal family network and denied a full opportunity to know of her heritage and identity."

27. He is concerned about the future potential impact on X of her learning within her lifetime of the mother's non-disclosure of her paternity to others, and the consequences this may have on X's future relationship with her birth mother and maternal family within her lifetime.  He continues:

"After much consideration and on balance I believe that X should be given the opportunities which would be afforded to her through disclosure of her paternity to the Local Authority and to the Court, however I accept that there is no mechanism to compel the mother to divulge that information to the Court and I do respect her right not to do so."

28. He continues:

"In doing so, I have considered circumstances in which the mother's fears regarding X's father's likely reaction to knowledge of X's existence were found to be correct and have reflected from X's viewpoint the implications both positive and negative of having knowledge that her father or paternal family did not seek to offer her care and familial belonging."

29. He concludes:

"This appears in my view to be a potential benefit to X by being afforded an honest and open account of his wishes and feelings in a similar manner to that which she will have from her mother and wider family."

30. At this hearing, the Court has been given some updated information.  The mother met the foster carers last week, was able to discuss with them how X is doing and what their plans are for her if she remains in their care.  The position in relation to future contact between the mother and X has also been brought into sharper focus.  The plans are that there will be annual face to face contact arranged through the Local Authority Post Adoption Service, which is a supported arrangement and will support the mother.  There is a mechanism that will be in place to ensure the contact goes well and there are also plans for indirect annual contact, as well.

31. The mother informed the court at this hearing she does not have any current means of contacting the father but she has said if, when she sees X during her contact visits, X wanted to know the father's details she would give them to her. 

32. No one has suggested or sought that anyone should give oral evidence. I have considered this application having read the papers and hearing submissions from all parties. 

The Legal Framework
33. The legal framework is agreed and summarised between paragraphs 8 and 13 of Miss Logan's helpful skeleton argument. I do not propose to lengthen this judgment with reading those matters out. 

34. One of the cases I have been referred to is Re L [2007] EWHC 1771 (Fam) which concerned a similar situation.  Munby J, as he then was, said as follows :

"The child with whom he was concerned with was born in June 2006, her parents were not married.  It would seem that their relationship was brief lasting no more than a few weeks.  Since before the child's birth her mother has been resolute that the child should be adopted.  She concealed her pregnancy from everyone and presented herself at hospital in labour, giving birth to the child two hours later.  Since the child's birth, the child had been in the care of a Local Authority.  In relation to the identity of the father, she has given the Local Authority certain information about him but she professes to be unable, the Local Authority and the guardian suspect that she is able but unwilling, to provide information which would enable him to be either identified or traced, and mindful of its obligations to the father and unable to progress matters any further, the Local Authority invoke the assistance of the Court."

35. At paragraph 23 of the judgment he sets out the duties under the Adoption and Children Act 2002, which permit the placement of a child for adoption and the making of an Adoption Order in each case without the consent of and without notice to a father who does not have parental responsibility, but as he observed there the Court has power under the relevant rules (now the Family Procedure Rules 2010), to direct that such a father may be joined as a party to proceedings.

36. He was then referred, at paragraph 24, to a number of cases dealing with this issue and at paragraphs 25 and 26 he states as follows:

"I do not propose to add to the jurisprudence. The Court has an unfettered discretion to be exercised having regard to all the circumstances and in a manner compliant with the requirements of the Convention.  That said, and where there exists family life within the meaning of Article 8 as between the mother and the father, one generally requires strong countervailing factors or compelling reasons or cogent and compelling grounds to justify the exclusion from the adoption process of an unmarried father without parental responsibility, but at the end of the day every case is different and has to be decided having regard to its own unique circumstances."

: "This all assumes, of course, that there is family life.  Based on what the mother has told us of her relationship with L's father I am sceptical as to whether he can in fact pray in aid Article 8 of the Convention.  If what she has said is correct, there was almost certainly no family life but given how little we know it would not be safe to proceed on that basis.  I shall assume though without deciding that the father's rights under Article 8 are indeed engaged."

37. He then referred to the case of Z, County Council Z County Council v R [2001] 1 FLR 365 where he made reference to comments by Holman J about the importance of respecting a mother's wish in the circumstances to confidentiality and the debate as to whether there is a power or not to require a mother in such circumstances to disclose the identity of the father. In relation to the advantages of a child knowing the identity of her birth parents he said as follows at paragraph 30:

"The benefits or possible benefits to L now and throughout her life of knowing who her father is, like any child, L should have the opportunity of growing up within her birth family if at all possible so adoption should not normally be considered until all possible family members have been ruled out.  It may be that there is out there a father who would want to and be able to bring her up.  If her father cannot himself bring her up then it might nonetheless be appropriate for L to have contact with him, even if only indirect contact after she has been adopted, and even if she is to be adopted then for the purposes of life story work, L needs to know as much as possible about her father and his family so that, for example, she can in later life if she chooses to do so try and trace him.  Also, she needs the emotional security of knowing that all this was investigated along with any relevant medical, ethnic and financial inheritance matters before the final decision for her adoption was made.  Her mother's stance is denying her all these things."

38. In that case he was clear that he did not compel the mother, who refused to identify or give details in relation to the father, to give oral evidence and said at paragraph 40:

"The whole process, if that was to be proposed smacks too much of the inquisition to be tolerable and it is not to be justified merely because we believe however strongly that what we are doing is being done in the best interests of the child.  Here again it seems to me the wise words of Holman, J, in relation to respecting the confidentiality and the position of the mother have a powerful resonance."

Discussion and Decision
39. In considering this application, the Court is bound to consider what order meets X's lifelong welfare needs.  The Court is required to do so under Section 1 ACA 2002, having regard to the matters set out in Section 1(4). Of particular resonance in this case is Section 1(4)(c) which is the likely effect on the child throughout his life of having ceased to be a member of the original family and become an adopted person. Also Section 1(iv)(f)(ii), which enjoins the Court to consider the relationship the child has with relatives and with any other person in relation to whom the Court or agency considers the relationship to be relevant, including the ability and willingness of any of the child's relative, or any such person, to provide the child with a secure environment in which the child can develop or otherwise meet the child's needs.

40. Each case is fact specific. The Court is not bound to accept the position of one party or another. What the Court has to do is to undertake an analysis of the information it has, consider whether it can or should take any further steps and this is guided by the Court's consideration of what it considers to be in the lifelong interests of X.

41. Cases such as this require the court to critically examine what the mother says.  The Court is concerned with the competing Article 8 rights of the mother, X and potentially X's birth father but it has to be done in the context of the facts and reality of the case being considered. 

42. In my judgment I consider it is appropriate that I should adopt the position taken by Munby J in Re L in relation to the birth father's Article 8 rights. The Court has very limited information to be able to make an effective analysis regarding these Article 8 rights, but given how little is known it would not be safe to proceed on that basis and I shall assume, as he did in that case without deciding, that the birth father's rights under Article 8 are engaged.

43. It is right the only information the Court has regarding the father comes from the mother. Save in that one respect the mother has cooperated entirely with the requests that have been made of her and the support that has been offered to her, not only prior this application and X's birth, but also after these proceedings have been issued. This is irrespective of whether that support and assistance has come from the Local Authority, Mr Shone or directions made by the Court.

44. The information the mother has provided about the father on the face of it appears to have some balance to it. She recognises and acknowledges when he has assisted her, for example writing the letter to her mother, and is able to acknowledge the positive and negative parts of their relatively short relationship. In those circumstances, Miss Logan submits the Court can place some weight on what she says and her reasons for not wanting the father to be informed.  She may well be correct about her fears regarding father's reaction, but it has to be recognised that she has limited or no information regarding the father's wider family, or his current circumstances.

45. What this Court does have is information that the mother at the time was a young vulnerable woman, who has tried to make decisions in what she considers is in the best interests of X.  Her position is rational and reflective and no one has sought to criticise her for the actions and the steps that she has taken, save in the respect of not revealing the identity of the father. Despite the sensitive discussions on this topic that have taken place with the social workers, who have had discussions with her on behalf of the Local Authority, and Mr Shone, the mother has not wavered in her position.  The Local Authority, in particular, are to be commended for the way that they have managed this sensitive situation, providing  the appropriate balance of support and consideration of the issues that have been involved, but without putting undue pressure on this young mother.

46. Against that, the Court has to take into account the impact on X of having ceased to be, if she is adopted, a member of the original family and become an adopted person, how X may react to this knowing that the paternal family were not given the opportunity to give her the security that her welfare clearly requires.  How that will work with X is of course difficult to tell, although certainly the Court's advice has always been that it is important for children in X's situation to have as much information in relation to their origins as possible

47. The mother has said today that she will tell X if she does ask her, but she has to reflect on the fact that it may be then too late for any meaningful contact or any information to be made available.

48. X has been placed with her current carers since birth.  All the indications are that she is settled extremely well there, she has formed a secure bond with those that care for her and that position has Article 8 implications for X and her right to a family life with them.

49. In considering what the Court should do in this situation, it has to balance the competing Article 8 rights of those with whom it is engaged. This is in the context of the birth father not knowing the existence of X and having no existing relationship with her.  He was aware of the pregnancy, but thought it had been terminated. As Miss Logan observes, he took no subsequent steps after that to make any enquiries about the position or, importantly, about the mother's welfare. 

50. X's identity is important.  At the moment, only her mother knows the identity of her father and has refused to give that information, or to countenance any further enquiries being made.  Mother has been urged to reflect on her position which she has, but has maintained her view.  No party has sought to suggest any other steps can be taken to shed further light on this issue.  Any further delay, unless purposeful for X, is likely to be detrimental to her welfare. 

51. In the light of the reality the Court is faced with and having considered the mother's position, I do not consider that the Local Authority should be required to take any further steps in relation to identifying or notifying the birth father and I will make an order that records that position.

52. I would just like to end with some final words.  It is of course a matter for the mother.  She should continue to reflect on her position and if she changes her mind and wishes to disclose who the father is, absolutely no one would criticise her for that step.  If she does do that, the position would need to be reviewed in the light of that information.  I hope she is able to maintain her contact with X.  It will be an important part of X's identify to enable her to make sense of her origins.