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Notification of Fathers and Wider Family Members in Relinquishment Cases: A Recap

Olivia Kirkbride, a pupil barrister at Coram Chambers, considers two recent, contrasting cases in which mothers sought to relinquish newly born children without notifying the fathers and family members.

Olivia Kirkbride, pupil barrister at Coram Chambers.

Last year, in A, B and C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 41, the Court of Appeal considered the issue of the approach the court and local authorities should take in cases where a mother seeks for her child to be adopted, without notifying the father and/or wider family members of the child's existence. The governing principles established by the Court of Appeal have subsequently been applied in the reported cases of Re L (Adoption Order: Identification of Possible Father) [2020] EWCA Civ 577, and A local authority v EL and others [2020] EWHC 3140 (Fam).

Such cases often give rise to difficulties for local authorities and the courts. Given the one-sided nature of the information available, they are rarely provided with the complete picture, and a mother cannot be coerced into providing the identity of the possible or putative father if she does not wish to do so. There may be a variety of reasons why a mother would not want the father and/or wider family members to be made aware of the existence of a child born in secret. For instance, the mother may have concerns that to reveal the birth would lead to a family breakdown, or there may be cultural or religious reasons which may cause the mother to fear ostracism within her community. In other cases, the child may have been conceived within a violent relationship, or as a result of a rape, as was the case in one of the three appeals heard in A, B and C. Notification in such circumstances could have a severe adverse impact on the mother's mental health.

There are of course potential Article 8 implications in such cases. Where a mother seeks to relinquish her baby without the child's father and/or wider family being notified, the mother's right to respect for her private life is engaged. The existence of family life for the purposes of Article 8 is a question of fact depending on the existence of close personal ties (Lebbink v The Netherlands [2004] 2 FLR 463) and may exist between a child born out of wedlock and its natural father, as well as between a child and its near relatives (Marckx v Belgium (1980) 2 EHRR 330). Where there is a potential relationship which may develop between a child born out of wedlock and the natural father, the relevant factors in establishing Article 8 rights include the natural parents' relationship and 'the demonstrable interest in and commitment by' the father to the child, prior to and following its birth (Lebbink v The Netherlands [2004] 2 FLR 463 at para 36). Thus, in Re A, B and C, the court confirmed that the existence of Article 8 rights is a weighty factor to be considered when reaching a decision as to notification; where the father and/or the wider family member have an established or potential family life with the mother or the child, the right to a fair hearing is engaged and strong grounds must exist to justify the withholding of notification.

Prior to Re A, B and C, decisions in notification cases were generally characterised by the language of 'exceptionality'. In M v F [2011] EWCA Civ 273 the mother had become pregnant by her husband, who was also the father to her three adult children. The father had mental health issues and had previously been violent towards the mother and one of their other children. The mother feared that to reveal the child's existence would lead to the breakdown of the family unit and ostracism within the community, and stated that she had concerns as to the child's welfare. The Court of Appeal found that a high degree of exceptionality would be required to prevent the father being informed and that the mother had failed to demonstrate a sufficient likelihood of harm, so as to justify non-disclosure.

This language of 'exceptionality' echoed that of the then President, Baroness Butler-Sloss, in Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646, where it was held that as a matter of general principle, birth fathers would be expected to be made aware of the existence of their child and of the proceedings, unless there were 'strong countervailing factors' which meant it was inappropriate to do so. Similar language was used in Re H (Care and Adoption: Assessment of Wider Family) [2019] EWFC 10, [2019] 2 FLR 33, which cited with approval the earlier case of Birmingham City Council v S, R and A [2006] EWHC 3065 (Fam), [2007] 1 FLR 1223 that to deprive a significant wider family member of the knowledge of the child's existence 'is a fundamental step that can only be justified on cogent and compelling grounds' (para 73).

Re A, B and C clarified the position as to the test to be applied. Peter Jackson LJ, at para 89.7, held that although the maintenance of confidentiality is the exceptional course, particularly where a father has parental responsibility or where there is family life under Article 8, 'exceptionality is not in itself a test or a short cut'. The decision as to notification should be made following a balancing exercise between the factors present in the individual case, and although the welfare of the child is an important consideration, the paramountcy principle does not apply. The various factors governing decisions in this area were summarised at para 89, and include, in addition to parental responsibility and the existence of Article 8 rights: the substance of the relationships between the parents and/or the relatives; the likelihood of a family placement being a realistic alternative to adoption; the physical, psychological or social impact on the mother or on others of notification (although, excessive weight should not be given to temporary difficulties or embarrassment); cultural and religious factors; the availability and durability of the confidential information; the impact of delay; and any other relevant matters.

These guiding principles were subsequently applied in Re L (Adoption Order: Identification of Possible Father) [2020] EWCA Civ 577. Although the mother in this case initially stated that her ex-partner, who was the father of her two elder children and had PR for the eldest, was also the father of the subject child, the mother later claimed that the child had been conceived as a result of a one-night stand with a stranger. The local authority sought a declaration that it need not take any further steps to identify the child's father or paternal family, but also sought an order for DNA testing to establish paternity. The mother sought sibling DNA testing, claiming that she feared her ex-partner's response if he were to discover the child's existence and that she was certain he was not the father. The Court of Appeal dismissed the mother's appeal against the trial judge's decision refusing sibling DNA testing and directing the mother to provide her ex-partner's contact details, concluding at para 25 that:

a. Sibling DNA testing would have constituted a disproportionate interference with the Article 8 rights of the other children and of the father.

b. The mother's argument that standard paternity testing was unnecessary therefore fell away.

c. The judge took a balanced view when he refused to sanction adoption without clarification of paternity. He concluded that there was 'a substantial possibility' that the father of the elder two children was also the subject child's father and that the overriding factor was for the child to know as much about her parentage as possible.

However, a quite different decision was reached in the recent case of A local authority v EL and others [2020] EWHC 3140 (Fam). The court considered the local authority's Part 19 application for a declaration that it need not notify the father of the birth of twins born in secret, and that his consent was not required to their adoption.

The mother was of Polish nationality but lived in the UK at the time of the birth. She was married, and her husband lived in Poland with the couple's four existing children. Although the mother initially told health professionals that her husband was the father of the twins, she later revealed that the twins had been conceived following a one-night stand with a stranger. She claimed that if her husband were to find out about the existence of the twins, then the marriage would be over and the damage to her relationship with the four eldest children would be catastrophic. The mother had informed the local authority that there was no one else in her or her husband's family who would be able to offer care for the children and there was no realistic alternative to adoption.

First, the court considered the legal presumption of legitimacy and illegitimacy; pursuant to section 26 of the Family Law Reform Act 1969, the presumption may be rebutted 'by evidence which shows that it is more probable than not that that person is illegitimate or legitimate …'. The judge then considered section 2(1) of the Children Act 1989, which provides that: 'Where a child's father and mother were married to … each other at the time of his birth, they shall each have parental responsibility for the child'. Taking the term 'father' to mean the child's 'natural' or 'biological' father, the judge at para 8 concluded that if it could be proved that the husband was not the biological father of the child, then the presumption of legitimacy would be rebutted, and the husband would not hold parental responsibility for the child.

The judge accepted the mother's account, considering what possible motive she could have for lying about the paternity of the twins, and concluding that had she been able to keep the children in her family, then she surely would have done. The judge therefore found that the husband was not the biological father of the twins, and he did not hold parental responsibility for them. In granting the local authority's application, the judge concluded at para 20 that 'the exceptionality criterion is satisfied in an individual fact (lack of biological paternity) and 'holistic' sense'

Despite the factual similarities between the two cases, the end result in each was markedly different. This goes to emphasise Peter Jackson LJ's conclusion in Re A, B and C: that there is no single test to apply in cases where a mother seeks to withhold information about a child's birth from a putative or possible father, or wider family members. The judge must instead weigh up all the factors present in the particular case, and retains a degree of discretion in determining the appropriate balance to be struck between the various interests involved.