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L (Adoption: Identification of Possible Father) [2020] EWCA Civ 577

Considering the approach to be taken where a mother wants a baby to be placed for adoption without notice being given to the child's putative father.

The mother ("M") had 3 children: a boy ("B" nearly 3) and two girls ("G", aged 1 year 9 months and "K" aged 9 months old).  She was separated from the father of the eldest two children ("F").  He had PR for B but not G.  Initially, having concealed the pregnancy until a late stage, M told her family and a midwife that K was also F's child.  She said she wanted K adopted at birth, and told a social worker F was K's father.

K was born in July 2019.  M left the hospital without seeing K and signed s20 consent when K was 2 days old.  She was adamant she would not give information about F.  8 days later she said F was not the father, and that K's father was someone she had a drunken one-night stand with and could not identify.

In October 2019 M signed her consent to adoption.  In December 2019 the LA applied for a declaration it need not take any further steps to identify or locate K's father/paternal family.  It also sought an order for DNA testing of F.  Although the two applications appear inconsistent, the Court of Appeal was told that the LA's position in proceedings was that K's paternity should be clarified.

Directions were made for the filing of statements.  M described unpleasant behaviour from F towards her and her family and said she feared his reaction.  M was directed to disclose F's address and telephone number and directed paternity testing of K and F.  M subsequently obtained advice on appeal and suggested that there could be testing of her, B and G to establish F was not K's father.

The LA opposed testing of B and G in order to try and establish F's non-paternity.  They highlighted that F had PR for B and article 8 rights in relation to both children (as he saw them for contact).

The judge heard brief submissions and listed the matter for the handing down of judgment, although he had indicated he would list a hearing for full argument if he were minded to rule against M.  In that judgment he determined that he would stand by his previous order, because of the potential for uncertainty and further argument if sibling testing were pursued.

When considering the grounds of appeal, the Court of Appeal held that there was not a serious procedural error in failing to hear further argument due to the fact he had a full statement from M and heard focused submissions from her counsel, which were explicitly taken into account.

Considering the substance of the appeal, Jackson LJ confirmed that where a mother wishes a child to be placed for adoption without notifying the father, and paternity is uncertain, the issues of notification and paternity are interlinked.  This case concerned a possible father (i.e. someone who may or may not be the father) rather than a putative father (someone thought to be the father, although not confirmed).  The weaker the possibility that someone is a father, the less likely the court will be to direct an investigation of paternity that compromises the mother's wish for privacy.

Jackson LJ declined to undertake a full review of the ethical issues surrounding sibling testing, but noted the following:

- The consent of a person with PR is sufficient for the taking of DNA samples, although there is concern about the appropriateness of paternity testing where only one parent has consented;

- The BMA's guidance advises against 'motherless' testing, as does the DoH guidance

- Concerns about 'motherless' testing are also potentially relevant to 'fatherless' testing.  It may breach the article 8 rights of the father and the child

- A court should be "extremely cautious" before approving the testing of possible siblings as a means of clarifying the parentage of a child whose mother seeks adoption

- The inherent ethical objections to sibling testing are therefore only likely to be overcome in "compelling circumstances" where the clarification of parentage is necessary and where standard paternity testing is for some reason not an acceptable option

In conclusion, dismissing the appeal, Jackson LJ held that:

1. The judge was right to resist sibling testing which would have been a disproportionate interference with the rights of B, G and F.  The factors speaking against telling F of K's birth were not strong enough to justify taking that course

2. As sibling testing is not appropriate, M's argument that it is unnecessary to seek 'standard' paternity testing falls away

3. The judge had taken a balanced view of the evidence and reminded himself that whilst there was an issue about paternity there was a substantial possibility F was K's father, as M had said this to professionals and her own family.  The overriding factor was that K should be provided with as much knowledge of her parentage as possible, so that she can know whether she has siblings and whether they share the same father

Summary by Julia Belyavin, barrister, St John's Chambers.

You can read the full judgment of L (Adoption: Identification of Possible Father) [2020] EWCA Civ 577 on BAILII