Analysis of M (adoption – notification of birth father) [2023] EWFC 17: the birth father’s right to be notified prior to adoption.

In this article, Ms Grosvenor examines the recent case of M (adoption – notification of birth father) [2023] EWFC 17 (1st February 2023). This case addressed a difficult situation; the consideration of a birth father’s right to be notified prior to adoption despite not holding parental responsibility and in the face of mother’s opposition and refusal to reveal his identity.

The Facts

The mother “C” discovered that she was pregnant at thirty-one weeks. She decided to place her child, “M”, with prospective adopters and he was placed with them when he was a day old. C did not wish to inform the birth father of the pregnancy, birth, or have him be involved in the decision of adoption. C also refused to name him to the local authority. As he was not named on the birth certificate, he did not automatically have any parental responsibility.

C stated that she was supported by her social workers in her decision not to inform the birth father. It was later noted by the Court that in fact the local authority had not made the enquires needed with the mother regarding the putative father. The local authority did not follow the law, nor the local authority’s processes and procedures. This included a failure to take any independent steps to identify the birth father’s identity or explore with the mother her reasons for excluding the father. In fact, the case notes provided indicated that at several times C received the incorrect assurance that she had an absolute right to withhold this information.

Adoption proceedings were commenced and at the first hearing in June 2022 HHJ Vincent (sitting as a s9 Deputy High Court Judge) declined to make the adoption order due to concerns that the Court could not without first considering the notification of the birth father.

As a result, the local authority applied to the Court, under Part 19 of the Family Procedure Rules 2010, and requested directions on the need to give a father without parental responsibility (due to his name not being on the birth certificate) notice of an intention to place a child for adoption. The Court directed that C and the prospective adopters be joined as interveners.

The matter was later heard on 17, 19 January and 1 February 2023. The local authority asked the Court to consider directions that may assist with notification, whereas C asked the Court to conclude that no further steps be taken to identify the birth father and for the proceedings to end, by way of adoption.

The Law

HHJ Vincent examined and applied the leading case of A B and C (Adoption: Notification of Fathers And Relatives) [2020] EWCA Civ 41 (29 January 2020) in which Jackson LJ examined the applicable statutory material when considering adoption and the notification of fathers and relatives.

The relevant material can be found within the Children Act 1989 and the Adoption and Children Act 2002, and their associated procedural rules, practice directions and guidance which will not be repeated here.

In brief, it is well established in both UK and European Law that there is great importance in engaging the father, wider family, and close family members when a child is being considered for adoption and any request to exclude them should be carefully scrutinised.

Further, CAFCASS protocol, which is largely adopted by local authorities, is that no assurances should be given to a mother/parent to suggest that the birth can be withheld from the father and/or extended family members. The starting point is the presumption that both parents should be given the opportunity to participate in proceedings concerning their child (see Re: A, B and C [86]).

In a situation where a mother opposes notification to the birth father or claims that he is unknown, but the reliability of this information is in doubt, the local authority/social worker should urgently seek legal advice to consider whether the matter should be placed before the court. If the later position arises, the local authority would be expected to consider if there was any reasonable way by which it could identify the identity of the birth father (see Re: A, B and C [86]).

That said, in these situations (when the pregnancy has been concealed from the purported father and the mother objects to notification) there is discretion as to notification of the birth father and other relatives. The position is as summarised by Jackson LJ in Re A, B and C at [59]:

…there is a discretion to be exercised by the local authority and by the court as to whether fathers and other relatives should be notified of the birth of a child.?The discretion requires the identification and balancing up of all relevant factors.?While the mother's right to confidentiality is important it is not absolute.?The presence or absence of family life is an important, though not a decisive feature and where it exists strong countervailing factors are required to justify withholding knowledge of the existence of the child and the proceedings.?The tenor of the authorities is that in most cases notification will be appropriate and the absence of notification will be the exception; but each case will in the end depend on its facts.?In each case, the welfare of the child was regarded as an important factor but, significantly, there is no suggestion that the exercise of the discretion is governed by the paramountcy principle.??

The Court’s approach should be as follows (Re A, B and C at [89]):

The principles governing decisions (by local authorities as adoption agencies or by the court) as to whether a putative father or a relative should be informed of the existence of a child who might be adopted can be summarised in this way.

·????????The law allows for ‘fast-track’ adoption with the consent of all those with parental responsibility, so in some cases the mother alone. Where she opposes notification being given to the child’s father or relatives her right to respect for her private life is engaged and can only be infringed where it is necessary to do so to protect the interests of others.

·????????The profound importance of the adoption decision for the child and potentially for other family members is clearly capable of supplying a justification for overriding the mother’s request. Whether it does so will depend upon the individual circumstances of the case.

·????????The decision should be prioritised and the process characterised by urgency and thoroughness.

·????????The decision-maker’s first task is to establish the facts as clearly as possible, mindful of the often limited and one-sided nature of the information available. The confidential relinquishment of a child for adoption is an unusual event and the reasons for it must be respectfully scrutinised so that the interests of others are protected. In fairness to those other individuals, the account that is given by the person seeking confidentiality cannot be taken at face value. All information that can be discovered without compromising confidentiality should therefore be gathered and a first-hand account from the person seeking confidentiality will normally be sought. The investigation should enable broad conclusions to be drawn about the relative weight to be given to the factors that must inform the decision.

·????????Once the facts have been investigated the task is to strike a fair balance between the various interests involved. The welfare of the child is an important factor but it is not the paramount consideration.

The position differs slightly when a birth father holds parental responsibility. This will not be explored fully within this article, but in brief those with parental responsibility are automatic respondents to a local authority application (Part IV of the Children Act 1989 and Family Procedure Rules 2010, PD 12C) and it would be a very exceptional case to withhold notice from a father with parental responsibility (see Re C (Care: Consultation with Parents Not in Child’s Best Interests) [2006] 2 FLR 787, Re X and Y (Children) [2018] 2 FLR 947 and A City Council v Mother [2021] EWHC 3375 for further information). The factors within Re A, B and C would also apply to these cases and the Court would be expected to consider them and draw an appropriate conclusion. In these circumstances, consideration should also be given to inviting the Attorney General to intervene in respect of the application in circumstances where the party concerned is not before the Court to argue the contrary case (A Local Authority v B (Dispensing with Service) [2020] EWHC 2741).

Commentary

This is an unusual case where there appears limited, if any, information to be able to identify the putative father and the only real mechanism for his identification rests solely on the mother providing this information.

Where there is information available to identify a parent, the balance more often than not will fall in favour of notification, but the balance of the factors must be done appropriately by the court. The further difficulty arises when the decision is for notification, but the mother still refuses.

The first point of relevance is that the court is likely to refuse to grant an adoption order without the appropriate consideration (in line with the above) having been taken in relation to notification of the birth father.

Secondly, matters can be complicated by the mother/parent maintaining their refusal. Of course, the court cannot and “will not coerce, compel or exert pressure that amounts to compulsion, nor conduct an inquisition” or act to infringe that mother’s Article 8 rights [Re: M 115].

The local authority will be expected to undertake reasonable efforts to identify who the birth father is. But if they are unable to, and the mother continues to refuse, then there will be no purpose served by further delay and the duty to notify will likely be withdrawn and matters able to proceed accordingly.

For further information the judgment Re: M can be found here and the judgement Re: A, B and C can be found here.?

Feleena is a pupil at KBG Chambers. Feleena will commence her 2nd six on 3rd April 2023 and will accept instructions in both Criminal and Family law. For more information about Feleena please contact the clerks on 01752 221551