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A Local Authority v JK & Anor [2021] EWHC 33 (Fam)

Application by Local Authority for orders under FPR Part 19 r14.21 and inherent jurisdiction to endorse decision not to disclose a child’s existence to his father and maternal family dismissed. Court critical of delay in applications


W was born on 3.02.20.  Three days prior to his birth, his mother (M) notified the Local Authority indicating that she wished to place her child for adoption.  W was placed with prospective adoptive parents shortly after birth.  The Local Authority applications, dated 3.09.20, were made to endorse decisions, strongly supported by Mother, not to notify the father or the maternal family of W's existence.  The child's guardian opposed the application.  The applications were dismissed.

• The court observed that while rule 14.21 was amended by SI2020/135 with effect from 6.04.20 to provide that such applications in relation to fathers without parental responsibility should be made to the family court, non-notification applications in respect of close relatives were still required to be made under the inherent jurisdiction.  The court observed that such applications should be heard together and suggested the rules committee may wish to consider whether r 14.21 could be enlarged to include other persons

• The judgment in Cases A, B and C [2020] EWCA Civ 41 had been delivered 3 weeks before W's birth and should have been in this Local Authority's minds.  The judgment summarises the facts of A, B and C and observes how similar the cases were.  The general approach to be taken is in paragraphs 45-84 of that case

• Of particular note is that

i) Absence of notification/ maintenance of confidentiality is exceptional

ii) The welfare of the child is important but the discretion of the court is not governed by the paramountcy principle

iii) The procedure needs to be both urgent and thorough, this should be closely adhered to by any Local Authority in this situation

iv) Reasons for non-notification and the facts of the case should be objectively and thoroughly assessed mindful of the often limited and one-sided nature of the information given. All information that can be discovered without compromising confidentiality should be gathered and respectfully scrutinised

v) There is no single test, but the court gives (at para 22) a non-exhaustive list of factors to be considered, summarised from para 89 of Re A, B and C

• There was an utterly unacceptable delay in issuing the applications,   which were made when W was 7 months old.  In Re A, B and C an application made 4 months after birth was described as "belated".  Applications should ordinarily be brought within a matter of weeks, rather than months after birth

Case Summary by Martina van der Leij, Barrister, Field Court Chambers

For Full Case please see BAILII