Anaum Riaz discusses – Re H (Care and Adoption – Assessment of wider family) [2019] EWFC 10

Judgement of Cobb J – what are the obligations on a Local Authority, by statute or otherwise, to notify wider family members of the existence of the subject child/assess them, when they are not proposed as potential alternative carers by parents and where parents do not wish the wider family to know?

To view the judgement please click here.

Facts

• The case involved a baby boy, aged 5 months, called ‘H’. H was in foster care subject to an interim care order. Public law proceedings were launched when he was born. H was the 3rd born child to these parents and had multiple half-siblings. The mother and father’s older children, F and G, had previously been placed for adoption.
• The parents were seeking to be assessed as a couple but the indications from the local authority were not positive. There was a long standing history of substance misuse and alcohol abuse, as well as a history of alleged domestic violence. An application for a placement order was not yet issued but was being actively contemplated.
• The wider maternal family were aware of the existence of F, G and H but did not wish to be considered as carers for H. The paternal family were unaware of the existence of H or his older siblings. The father made clear his opposition to the local authority notifying his family of H’s existence and that he would rather H be placed for adoption than the paternal family be involved.
• The question for the court arose from the local authority obtaining the father’s birth certificate, which contained his parents’ names, which would materially assist in locating father’s parents.

Issue

The local authority sought guidance on:

Whether it should take steps to track down paternal family and notify them of existence of H with a view to assessing them?

Cobb J’s Analysis

Cobb J reviewed the statute, guidance and case law to consider the question of whether there is a duty on the local authority to assess.

He noted the duty on the local authority under s.17 Children Act 1989 to promote the upbringing of children by their families, by providing a range and level of services appropriate to those children’s needs, and s.22C which reflects the principle that all children, including looked after children, should wherever possible be cared for by their families and friends.

He concluded that there is no provision of CA 1989 or ACA 2002 or AAR 2005 or associated Practice Direction which absolutely require or place a duty on the local authority to inform, consult, assess or otherwise consider members of the wider family of a child in circumstances such as these.

That said, he highlighted the guidance and principles which speak of the importance of enabling wider families to contribute to decision-making and providing a network of support and safe and appropriate care where possible.

He went on to review the case law and reiterated the principle that a care order with a plan for adoption (against parental wishes) should be ‘a last resort’. However, he also highlighted that the courts have been keen to emphasise that if family members are identified as potential carers, it is not contemplated that the local authority duty to consider them extends to a duty to ‘uncover’ every stone nor ‘exhaustively examine’ the ground  before concluding that a particular option is not realistic (Re R (A Child) [2014] Civ 1625)

Cobb J went on to consider the other side of the debate – the case for confidentiality. In doing so, he made reference to the group of cases often known as the ‘relinquished baby cases’ where the parents decide, prior to birth, or very quickly upon birth, that they wish nothing more to do with the baby, and wish the authority to make discreet, confidential and swift arrangements for the baby’s placement with a permanent substitute family, including Re JL & AO [2016] EWHC 440 (Fam). In Re JL &AO, Baker J commented that in such cases, the wishes and feelings of the parents are likely to be an important consideration, although they must be considered in the context of other factors in s.1(4) and the child’s welfare generally.

Cobb J went on to summarise the cardinal principles from the relinquished baby cases:

• Each case is fact-sensitive (Re RA (Baby Relinquished for adoption) [2016] EWFC 25 at [31])
• The outcome contended for here is ‘exceptional’ (A Local Authority v the mother at [1]/[7])
• The paramount consideration is the welfare of A; section 1(2) Adoption and Children Act 2002 (‘ACA 2002’)
• The court must have regard to the welfare checklist in section 1(4) ACA 2002;
• It is a further requirement of statute (section 1(4)(f)(iii) ACA 2002) that the court has regard to the wishes and feelings of the child’s relatives;
• Respect can and indeed must be afforded to the mother’s wish for confidential and discreet arrangement for the adoption of her child, although the mother’s wishes must be critically examined and not just accepted at face value; overall the mother’s wishes carry ‘significant weight’ albeit that they are not decisive (Re JL & AO at [47], [48] and [50], and see also Re RA at [43(vi)]);
• Article 8 rights are engaged in this decision; however in a case where a natural parent wishes to relinquish a baby, the degree of interference with the Article 8 rights is likely to be less where the parent/child relationship is to be severed against the will of the parent (Re TJ at [26]);
• Adoption of any kind still represents a significant interference with family life, and can only be ordered by the court if it is necessary and proportionate (Re RA at [32]);
• A high level of justification is still required before the court can sanction adoption as the outcome, and a thorough ‘analysis’ of the options is necessary (Re JL & AO at [32]); ‘analysis’ is different from ‘assessment’ – a sufficient ‘analysis’ may be performed even though the natural family are unaware of the process (Re RA at [34]). As said in Re RA at [38]:
• “In order to weigh up all of the relevant considerations in determining a relinquished baby case it may be possible (it may in some cases be necessary) and/or proportionate to perform the analysis without full assessment of third parties, or even their knowledge of the existence of the baby. The court will consider the available information in relation to the individual child and make a judgement about whether, and if so what, further information is needed”.

Conclusion

On the basis of the analysis above, Cobb J acceded to the application of the local authority to notify the father’s parents of the existence of H.

He provided the following reasons:

• None of the provisions of statute, regulations or rules to which he referred earlier, impose any absolute duty on either the local authority or the Children’s Guardian, or indeed the court, to inform or consult members of the extended family about the existence of a child or the plans for the child’s adoption in circumstances such as arise here. However, the ethos of the CA 1989 is plainly supportive of wider family involvement in the child’s life, save where that outcome is not consistent with their welfare.
• This is not a situation, given the absence of a de facto relationship between the grandparents and H, in which he can find support for the relief which the local authority seeks by reliance on Article 8 ECHR; this is not a case in which hhe can point to “the real existence in practice of those close personal ties” between H and his grandparents or wider family. H has no Convention right to assert.
• While recent appellate case-law offers clear guidance on the route by a court or adoption agency should reach a decision to place a child for adoption in the face of parental opposition ([30]-[32]), it offers no clear steer on this particular issue.
• Consequently, the court, and/or the local authority or adoption agency, is enabled to exercise its broad judgement on the facts of each individual case, taking into account all of the family circumstances, but attaching primacy to the welfare of the subject child.

Comment

The clear implication of Cobb J’s decision is a refusal to widen the small class of exceptional cases contemplated in the ‘relinquished baby’ caselaw and made clear the question is a balancing exercise, which is determined primarily by the interests of the child, among other factors. In this case, and as envisaged in many cases, that the principle of adoption being a last resort is placed ahead of the right of the parents to confidentiality surrounding the proceedings, although each case will ultimately be determined on its facts. Whilst the local authority has no absolute obligation to inform or involve the wider family, it will in every such case need to consider whether there are ‘cogent and compelling’ reasons for not doing so.