C (A Child) v XYZ County Council & Anor [2007] EWCA Civ 1206

[2007] EWCA Civ 1206Case No B4/2007/2515C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/11/2007
Before
LORD JUSTICE THORPELADY JUSTICE ARDENLORD JUSTICE LAWRENCE COLLINS
Between
Re. C (A child)ApplicantXYZ County CouncilFirst RespondentE.C.Second Respondent
Ms Eleanor Hamilton QC & Dr Gillian Kane (instructed by Messrs AB) for ApplicantMr Martin Todd (instructed by XYZ Legal Services) for theFirst RespondentMiss Judith Rowe QC (instructed by the Messrs CD) for Second RespondentHearing Hearing date : 7 November 2007
JudgmentLady Justice Arden :
[1]This appeal concerns a child of a young unmarried mother who was placed for adoption at birth and the question is whether the local authority should make inquiries to see if any of the child’s birth family would be suitable carers. The mother is against it. She did not tell them about her pregnancy or the birth. The father was a one-night stand. The particular features of this case are (i) a young unmarried mother; (ii) a child born as a result of a sexual encounter on one occasion with someone with whom the mother had no other relationship; (iii) a clear view by the mother that she wishes the child to be placed for adoption and (iv) the mother has never cared for the child.[2]The most recent primary legislation on adoption is the Adoption and Children Act 2002 (“the 2002 Act”). The relevant provisions only came into force on 30 December 2005. Before the 2002 Act, the courts made it clear that, while in general the views of a father of a newborn child should be obtained before the child was placed for adoption, they did not require the consent of the father to be obtained where the mother and father had had only a fleeting relationship. The question is whether the 2002 Act has changed the position so that, as the judge held in the court below in this case, there is now a duty to make enquiries. In his judgment dated 28 September 2007, he held:
"The local authority has no choice. They are under a duty to inform themselves of as much information about the background of the extended family as they are able to do."
[3]In my judgment, for the reasons given below, when a decision requires to be made about the long-term care of a child, whom a mother wishes to be adopted, there is no duty to make enquiries which it is not in the interests of the child to make, and enquiries are not in the interests of the child simply because they will provide more information about the child's background: they must genuinely further the prospect of finding a long-term carer for the child without delay. This interpretation does not violate the right to family life. The objective of finding long-term care must be the focus of making any further enquiries and that means the court has to evaluate evidence about those prospects. That did not happen in this case. The judge consequently directed himself according to the wrong principle and his exercise of discretion must be set aside. This court must exercise the discretion afresh.[4]The judge directed the local authority to disclose the existence and identity of the child to the extended maternal family and, if he could be identified, the putative father and any extended paternal family. The judge overruled the mother's objections in the interests of the child. The judge's order provides the disclosure to the father, "if identifiable", but it is clear from the discussion after judgment that this phrase does not accurately record the judge's order. He intended that there should be disclosure to the father only "if identified”. It will be noted that the judge's order was about disclosure of information. What it is in substance about is whether the wider family and putative father must be given a role in questions as to E’s future.[5]I need only say a little more about the background. The mother was 19 years old when she became pregnant. She did not realise that she was pregnant until a late stage. She kept her pregnancy a secret from her family. She lives on her own and has her own career. She does not consider that she could look after E. She did not seek medical help until she went into labour. Immediately after E was born, she made it clear that she wanted E placed for adoption. She also said that she did not think that her family could provide E with a home, giving reasons. Her parents were divorced. She had left home after a fight with her mother at the age of 17. She did not consider that she had any meaningful relationship with her father, whom she saw only occasionally. He is critical of her lifestyle. We understand that the mother has siblings but there is no evidence that they might be in a position to take on the care of E. She declined to identify E’s father, although she has given some details. It is likely that he could be identified if the guardian authority made independent enquiries. E is now over four months old and naturally starting to form bonds with the foster parents who are caring for her. Her best interests require that she should as soon as practicable, consistently with the 2002 Act, start to live with a family who can commit to look after her throughout her childhood and with whom she can form lasting relationships.[6]As Thorpe LJ explained in his judgment, the local authority’s response to this situation was on 16 July 2007 to apply for a care order under the Children Act 1989 (“the 1989 Act”). I agree with him that the application should have been made under the Adoption Act 2002 for the reasons he gives. But this does not affect the issues of principle to which this case gives rise.[7]After the judge made his order, there was a misunderstanding as a result of which the children’s social care section of the local authority wrote to the mother’s parents seeking an interview but not giving the reason. The parents discovered that the mother had given birth to E and have contacted the local authority offering to assist in resolving the situation. The parents have not taken part in these proceedings and have not been made a party to them.

Relevant provisions of the 2002 Act

[8]I am now going to set out what the material provisions of the 2002 Act say without at this stage making any points about their interpretation. The 2002 Act puts the interests of the child at the forefront of decision-making about a child who is to be adopted, and it sets out a “welfare checklist” which any court or adoption agency making a decision about a child adoption must work through. This welfare checklist is modelled on the welfare checklist in the Children Act 1989 (“the 1989 Act”), but it is adapted to the particular circumstances of adoption. Thus s 1 of the 2002 Act provides:(1) This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.(2) The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.(4) The court or adoption agency must have regard to the following matters (among others)— (a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding), (b) the child’s particular needs, (c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person, (d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant, (e) any harm (within the meaning of the Children Act 1989 which the child has suffered or is at risk of suffering, (f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including— (i) the likelihood of any such relationship continuing and the value to the child of its doing so, (ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs, (iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.(5) In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.(6) The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.(7) In this section, “coming to a decision relating to the adoption of a child”, in relation to a court, includes— (a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order), (b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act, but does not include coming to a decision about granting leave in any other circumstances.(8) For the purposes of this section— (a) references to relationships are not confined to legal relationships, (b) references to a relative, in relation to a child, include the child’s mother and father. ”[9]If the parents and the guardian give their consent, a local authority may place a child with prospective adopters under s 19 without making an application to the court: s 19 of the 2002 Act. They may, at the same time, give consent to the making of an adoption order. A reporting officer must verify that the consent is valid. Where ss 19 and 20 apply, there is a “fast track adoption”, which takes less time than an adoption where the court is involved. The consent of a parent who does not have parental responsibility is not required: s 52 of the 2002 Act. E’s father has not been named on her birth certificate and he does not have parental responsibility for her. If he were hereafter to obtain parental responsibility, and by then the agency had placed E for adoption under section 19, he would be treated as having given consent when the mother gave consent: s 52(9) and (10). Where a parent with parental responsibility does not consent but the court has power to make an order of its own initiative, the court may decide not to give notice of its intention to make an order to the parent who does not consent: reg 13 of the Family Procedure (Adoption) Rules 2005 ("the 2005 Rules”). The court may dispense with the consent of a parent who cannot be found where it is in the interests of the child that the consent should be dispensed with: reg 27 of the 2005 Rules.[10]The court has appointed Ms PB, as a guardian for E under reg 59 of the 2005 Rules. The duty of the guardian is to safeguard the interests of the child and to provide the court with such assistance as it may require. The guardian has a duty to make such investigations as are necessary and to conduct interviews. The judge’s judgment[11]The local authority and the guardian applied for directions to HHJ Taylor. He invited the parties to consider whether the matter should be transferred to a High Court judge but the parties refused that invitation because of the delay that would be involved. The judge heard submissions from counsel for the local authority, the guardian and the mother. He held as I have already indicated that the local authority had no choice under the 2002 Act and that they had to inform themselves of as much information about the background of the mother's family as they could. He added that it could be that a long-term carer might be found in the family. He continued: “…[O]bviously it will be in the interests of this child to be placed within the family… the reality is -- as we all know nowadays -- that when children are adopted they come to a time in their lives when they do enquire about their parentage and it would be cruel in the extreme to prevent this child having as much knowledge as possible about her background in the event that she is adopted, even if that information comes without the consent of the mother but as a result of the authorities informing themselves of the relevant information.[12]He expressed the hope that the mother would change her mind and would agree to assist the local authority in working with her family. He gave the mother 21 days to consider her position. But he directed that, if she did not agree to talk to her family in that time, the local authority were to be free to approach them themselves.

The issues for decision

[13]There are two issues for decision. The first issue is whether the 2002 Act imposed a duty on the local authority to make enquiries about long-term care for E with her mother's family and, if those enquiries did not yield a long-term carer for E, with E’s father, if identified, and his family. I have already indicated that in my judgment there was no such duty unless the interests of the child so require. The second issue is how the court’s discretion to give directions about contacting the extended family or father of a child in case of this kind should be exercised. Issue (1): where a mother places her child from adoption, does s 1 of the 2002 Act impose a duty on the local authority to make enquiries of a child's extended family or father about the possibility of their providing long-term care?[14]This is a question of statutory interpretation. It is necessary to go back to s 1, which I have set out above. In my judgment, the governing provision is subs (2), because it lays down a ‘paramount’ or overarching consideration, and not surprisingly that paramount consideration is the child's welfare. Parliament has added that the reference to welfare is to welfare throughout a child's life and not simply in the short term future or the child's childhood. All the other provisions of s 1 about decision-making take effect subject to this provision.[15]The result is that s1 is child-centred. It is not “mother-centred”. The emphasis is on the interests of the child and not those of the mother. As the European Court of Human Rights (“the Strasbourg court”) expressed it in one case, adoption means “giving a family to a child and not the child to a family” (Fretté v France (2004) 38 EHRR 21 at [42]). The interests of the child will include the child's interest in retaining its identity, and this is likely to be important to the child in adulthood. But identity is only one factor in the balance that has to be struck. S 1 does not privilege the birth family over adoptive parents simply because they are the birth family. This is underscored by s 1(6), which requires the court or adoption agency to consider the whole range of powers available to it in the child's case.[16]S 1 then lists a number of matters that the court or adoption agency must have in mind when it makes any decision about adoption. Importantly, those matters include delay (subs (3)). Then subs (4) lists a large number of matters. These are not matters on which the court must necessarily act but it must certainly "have regard" to them.[17]There are a number of important points to note about the structure of s1. The list of matters is not exhaustive. The court is required to have regard to the specified matters "among others". It is not therefore an exclusive list. Moreover, s 1 still leaves a great deal to the discretion of the court since it does not prescribe the weight which the court or adoption agency must give to any particular matter. That will depend on what is required to fulfil the paramount consideration. S 1 stipulates that particular matters are to be taken into account, but does not provide any express machinery for ascertaining those matters. The means of ascertaining those matters is left to the inherent powers of the court or statutory powers of the adoption agency. The legislation is not prescriptive, and it has been left to the exercise of discretion as to whether any means available as a matter of inherent jurisdiction or under statutory powers is actually employed. Finally, with one exception, s 1 does not establish any preference for any particular result or prescribe any particular conclusion. Importantly, as I have said, it does not express a preference for following the wishes of the birth family or placing a child with the child's birth family, though this will often be in the best interests of the child. The one exception is delay. Delay is always to be regarded as in some degree likely to prejudice the child's welfare: see subs (3). Parliament has here made a value judgement about the likely impact of delay and it is not open to the court or the adoption agency to quarrel with that basic value judgement.[18]In this particular case, subs (4) (c) and (f) are particularly important. They were not in the Adoption Act 1976 and are therefore new. Subs (4) (c) explicates the extended meaning of the child's welfare, and requires the court to look at the likely effect on the child throughout the child's life of having ceased to be a member of the original family and having become a member of his or her adoptive family. This means that the court will have to take into account the importance to a child of their identity, and accordingly, I will have to deal with this matter when I consider how the discretion should be exercised.[19]Subs (4) (f) requires the court to have regard to the relationship "which the child has" with relatives. Relatives are not confined to legal relationships or close relations (see subs (8)). They would therefore include de facto relationships. This provision is wide enough to cover relationships that have potential for development in the future. E has no relationship with her father at the present time, other than the blood relationship and the potential social relationship were they ever to be in contact with each other. Their relationship is therefore a matter to be considered under subs (4) (f). Likewise the potential relationship that E has with her grandparents is a matter to be considered under that provision. There is nothing to confine subs (4) (f) to relatives who happen to know of the child’s birth.[20]Subs (4) (f) requires the court to have regard to the wishes and feelings of a child's relatives and their ability and willingness to provide the child with long-term care. However, that assumes that information is reasonably available about these matters. If the information is not readily available, the court or adoption agency may want to obtain it. But in the light of subs (2) there are only required to do so, if that is required for the purposes of the child's welfare and if they consider it right to take those steps notwithstanding that any delay is likely to prejudice the child’s welfare.[21]It can be seen from this analysis that when a decision requires to be made about the long-term care of the child, whom a mother wishes to be adopted, there is no duty to make enquiries of an absolute kind. There is only a duty to make enquiries, if it is in the interests of the child to make those enquiries. In the present case, the judge considered that in adult life the child would benefit from more information about the child's father. But in the context of the decision-making with which the judge was concerned, I do not consider that that fact could of itself animate indeed the exercise of discretion. The immediate question with which the guardian and local authority were concerned was who would look after the child on a long-term basis. The enquiries had to be focused on that result. That meant looking at the evidence about the prospective carers within the mother's family. It was not enough simply to say that it would be in the child's interests to be placed with her birth family. I will have to consider the evidence on that when I come to consider discretion. Finding out more about the child's background for E’s information in the future was secondary to that objective, and it would inevitably lead to delay. In the circumstances, I consider that the judge misdirected himself about what enquiries s 1 required in the instant case.[22]It is convenient at this point to deal with another argument relevant to the interpretation of s 1. E is a looked after child, that is a child provided with accommodation by the local authority in exercise of its functions referred to in s 22 (1) of the 1989 Act. The guardian points out that before a local authority makes any decision with respect to a child whom they are looking after, they must ascertain the wishes and feelings of persons such as the child's parents: s 22(4) of the 1989 Act. Moreover, under s 23 of the 1989 Act, the local authority must provide accommodation for a looked after child by placing him with a family, or a relative of his. The guardian submits that the 1989 Act places heavy emphasis on consulting widely within a child's immediate and wider family in order to plan for the child's future. In my judgment, those provisions cannot apply where special provision is made by the 2002 Act. Decisions as to E’s long-term care, in circumstances where the mother has given her up for adoption, fall within the 2002 Act. There is no reason to give the care proceedings initiated by the local authority precedence over adoption. The only active proposal for long-term care for E is via adoption. The guardian focuses on the point that there are no proceedings under the 2002 Act, but the reason for that is that the local authority has chosen (incorrectly) to use the 1989 Act instead.[23]The guardian accepts that there can be no absolute obligation under section 1 to approach the father or the wider family of the child. But she submits that the circumstances in which this should not occur would be limited to cases such as those where the life of the child would be at risk. The guardian relies on the societal shift towards greater involvement of natural father in the upbringing of children. The guardian accepts that each case must turn on its facts, and that a balancing act has to be conducted in each case. But she rejects the mother's contention that the judge was plainly wrong. She submits that the effect of s 1(4) (c) and (f) is that there is now an expectation of disclosure and that the courts should require compelling reasons to prevent it taking place, certainly to a natural father and probably too to close members of the wider family. In my judgment, as I have already indicated, the overarching consideration is that of the interests of the child. In many cases disclosure will be in the interests of the child, but it cannot be assumed that it will always be so. Moreover, disclosure has to be directed to an end that furthers the making of the decisions which require to be made. That requirement was not met in the present case.[24]The logical consequence of my interpretation of s 1 is that exceptional situations can arise in which relatives, or even a father, of a child remain in ignorance about the child at the time of its adoption. But this result is consistent with other provisions of the 2002 Act. There are situations when the court does not require the consent of the father. For example, the consent of the father without parental responsibility is not required for a placement under ss 19 or 20, and, even if E were to be placed for adoption with her mother's consent but her father later obtained parental responsibility, he would be deemed to have consented to the placing of E for adoption (see above).[25]The effect of s 1 as I have held it to be is consistent with the refusal by the court under the Adoption Act 1976 to give notice of adoption proceedings to a father who had had only a fleeting relationship with the child's mother: in reH; re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646, the President of the Family Division (Dame Elizabeth Butler- Sloss) ordered that no notice of adoption proceedings needed to be given to a father who had never cohabited with the child's mother. In Z County Council v R [2001] 1 FLR 365, a baby, whose mother had refused to disclose the identity of the father, was placed with prospective adopters. The local authority applied for an order freeing the child for adoption. At that stage, the guardian raised the question whether the mother's relatives should be told about the baby's existence and consulted as to whether any of them might wish to offer the child home. The mother opposed this course. Holman J held that there was no reason to doubt the mother’s views that the relatives could not care for the baby. Accordingly, he held that it was not in the child's interests to reveal the information. Self-evidently, it would be inappropriate to reveal the existence of a child to a father who was violent, or to relatives who suffered from illnesses which would make it impossible for them to look after the child.[26]There will be situations in which it is impossible to ascertain who the father is without the mother’s co-operation. That situation may not be this case. The recent case of re L [2007] EWHC 1771 shows that the courts are likely to take the realistic view that, where the only person who knows the father’s identity is the mother and she refuses to identify him, there is nothing in practical terms which can usefully be done. Munby J, on an application under the court’s inherent jurisdiction, directed in those particular circumstances that, subject to asking the mother once more for the name of the father, no further steps needed to be taken to give a father without parental responsibility notice of intention to place a child for adoption.

The right to respect for family life

[27]The court is a public authority for the purpose of section 6 of the Human Rights Act 1998 and accordingly it would be unlawful for the court to act in a manner which was incompatible with the rights conferred by the European Convention on Human Rights (“the Convention”). It follows that we must consider whether it would be contrary to the Convention for the court to prevent disclosure of the birth of a child to the child's father or the relatives of either parent.[28]The Convention guarantees respect for private and family life in these terms:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”
[29]A number of questions arise in the context of the present case as to the meaning of private and family life and as to the content of the state’s duty to respect private or family life.[30]Self-evidently, if a person has a right to respect for their family life with a child proposed to be adopted, the adoption of that child will constitute an interference with the right. That interference will have to be justified under art 8(2). Likewise, the disclosure of confidential information about the child could violate the mother’s right to respect for her private life, so that too must be capable of justification under article 8 (2). That requirement is likely to be met where the disclosure will promote the interests of the child in a relevant respect.[31]The Strasbourg jurisprudence appears to establish that near relatives, particularly grandparents, automatically have a family life with a child even if the child has never lived with them: see Marckx v Belgium (1979-1980) 2 EHRR 330 at [45]. But, in other situations at least, it all depends on the facts. It includes a potential relationship, that is, a relationship which may develop. However, family life as between a father and a child born out of wedlock is not automatic. The father must have had some relationship with the mother and expressed his commitment to the child in some way, even if there was no cohabitation: Nylund v Finland Application No 27110/95, 29.12.99; cf J.R.M. v Netherlands [Application No. 16944/90] and see Re H; Re G, above. Moreover, intended family life may, in some circumstances, be enough to establish a right to respect for one's family life: Pini v Romania (2005) 40 EHRR 13.[32]It follows from the authorities given above that the father of E would as matters stand, have no right to respect for his family life with E because he has no family life with her. He has never lived with her mother or expressed any commitment to E. He could not have done so because he does not know of her existence. But it is not a violation of a Convention right to deprive him of the possibility of obtaining a right to respect family life with E. He has therefore no Convention right under art 8(1) and accordingly it is unnecessary to ask whether art 8(2) would apply in his case.[33]The concept of private life in article 8 also protects the interest which a person has in receiving information which is necessary for them to know and understand their identity: see for example Gaskin vUnited Kingdom (1989) 12 EHRR 36. However, in Odièvre v France [2003] 1 FLR 621, the Strasbourg court held that it was within a state’s margin of appreciation to choose the means calculated to secure compliance with this aspect of the rights guaranteed by article 8. Thus, in that case, no violation was involved in the practice permitted by French law of a woman remaining anonymous after the birth of a child so that the child could never ascertain who his mother was. The Strasbourg court reached this conclusion in the light of the diversity of practice to be found among the legal systems and traditions in the states that are party to the Convention and in the light of the fact that French law was said to protect the health of the mother and her child. The mother might otherwise have had an unlawful abortion or abandoned her child or given birth secretly and without medical assistance. The Strasbourg court considered that the legislation struck a fair balance between the competing interests.[34]Miss Eleanor Hamilton QC, for the mother, drew our attention to this case, but fairly accepted that it was of little assistance since English law does not guarantee secrecy and we are not concerned with enforcement of a child's right to know about his natural parents. None of the other counsel sought to rely upon it. It can of course be argued that the information that the guardian could obtain if she made more enquiries now about E’s father is likely to be lost by the time that E is of an age to make these enquiries herself. But the only right to information which the 2002 Act gives is to information in the adoption file and other records: in the light of the Odièvre v France it is difficult to see that this limitation violates article 8, since there is no suggestion that this does not represent a fair and proportionate balance between the interests of the adopted child and those of its natural parents. There is nothing to suggest that it would be a proper use of the guardian's powers now to pursue enquiries as to who the father might be in order to assist the child in establishing her identity later in life. In my judgment, it would be wrong to use powers for that purpose when the decision required to be made, as a matter of some urgency, is one as to E’s long-term care. The court has no express power to compel any person to give information in answer to the guardian's enquiries, and I note that it was held in Mikulic v Croatia [2002] FCR 720 that it may be a violation of one person’s rights to compel him to undergo paternity tests simply so that another person can establish their identity.[35]The guardian submits that E has her own Convention right to be brought up by her natural father; in other words, that while he may not have a right to respect for his family life with her, she may have a right to respect for her potential family life with him. This point was not fully argued, and I would be reluctant to express a final opinion on it. But, if she does have that right, there would be no interference if the court’s decision on her adoption fulfilled the requirements of art 8(2). That matter can only be determined when the application for an adoption order is made. There is no reason in principle why an appropriate order should not comply with that provision. Her potential right would not afford a justification for disclosing material to the extended family or the father at this stage.[36]In Z County Council, Holman J held that if there was disclosure of information about a child against the wishes of the mother, there was a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies. Miss Hamilton relied on this point, and she added that was also a risk of children being abandoned rather than handed over to the local authority.[37]In Odièvre, the Strasbourg court accepted that there were concerns about securing the health of a mother if she could not have anonymity. But caution must be exercised about this, because there is little evidence. E’s birth was not secret, and she was not left on the doorstep or abandoned. It is, moreover, likely these days that, in the absence of some religious objection, a woman would have an abortion rather than take an unwanted child to term.[38]However, if these matters of potential harm to the mother's health or the child's health can be supported, they may constitute an additional reason at a macro level for the court having power to withhold information from relatives or the father of a child in an appropriate case. In this case, however, it is not necessary to rely on these matters.[39]Accordingly, I conclude that an order directing that information about E should not be disclosed to E’s father would not violate his Convention rights under art 8 because he has no right to be violated. The grandparents have such a right, but non-disclosure to them would not violate their right since ex hypothesi the court would have concluded that E’s welfare required that that order to be made and they would be able to obtain the information by making their own application under the 1989 Act.

Issue (2): Factors relevant to exercising the discretion in this situation

[40]I propose to start with a few general observations. There will inevitably be a wide variety of cases where there arises the question whether a newborn child should be adopted. Every case has to be determined on its particular facts. The fact that the father or a relative has no right to respect for family life in the particular case does not mean that their position should not be considered: s 1(4)(f) of the 2002 Act applies irrespective of art 8 rights. However, the position of a person would command more importance if they were entitled to that right.[41]I accept the submission of the local authority that the court or adoption agency cannot simply act on what the mother says. It has to examine what she says critically. It is a question of judgement whether what the mother says needs to be checked or corroborated.[42]The local authority goes on to say that the ordinary rule should be that the near family and father should be identified and informed unless the court is satisfied that such enquiries would be inappropriate. The local authority submits that there is a growing trend towards involving the natural family and the father in such cases. It is no doubt true to say that there are a substantial number of cases where a child who would otherwise be placed for adoption is offered long term care by a member of the family.[43]I do not consider that this court should require a preference to be given as a matter of policy to the natural family of a child. S 1 does not impose any such policy. Rather, it requires the interests of the child to be considered. That must mean the child as an individual. In some cases, the birth tie will be very important, especially where the child is of an age to understand what is happening or where there are ethnic or cultural or religious reasons for keeping the child in the birth family. Where a child has never lived with her birth family, and is too young to understand what is going on, that argument must be weaker. In my judgment, in a case such as this, it is (absent any application by any member of the family, which succeeds) overtaken by the need to find the child a permanent home as soon as that can be done.[44]I now turn to this case. The mother has given information about her family. There is no reason to think that it is materially inaccurate. She considers that neither her siblings nor her parents could offer E long-term care. She points out, for instance, that her father has retired and remarried. His new wife has three children from a previous relationship all of whom are teenagers. She has moreover had a bad relationship with her mother and her father and there is nothing to suggest those difficulties would be magically resolved by introducing E into the wider family. On the contrary, those difficulties may well be exacerbated. The local authority takes the view that the concerns that the mother had about her parents have not materialised.[45]In my judgment, while it is correct that the mother’s parents have written a letter to the local authority, they have not explained, whether and if so, how they could assist. In my judgment, it would not be right to delay the placing of E for adoption on such thin evidence. Given the passage of time that has already taken place, I take the view that the grandparents would have to have a better than evens chance to justify the making of an assessment of them as long-term carers. The material provided so far does not support that assessment. A strict view needs to be taken of the situation because E is already four months old, and starting to form relationships. If more time had been available, the court might have been (but would not necessarily have been) more willing to order disclosure in their favour. Moreover, in view of my conclusion that the local authority should not have informed the mother’s parents about E, it would be unfair to the mother if they were placed in a better position than they would have been in if the local authority had not told them about E simply because of the mistake that has occurred. The mother had no part in that. Furthermore, the mother’s parents are not shut out from making their own application to have long-term care of E, if they wish to do so. They can take out an application under the 1989 Act. Nothing said in this judgment expresses any view on any such application, which would be decided on the evidence then before the court.[46]That leaves the position of the father. He was only a one-night stand, and has no family life with E or the mother, entitling him to the guarantee of respect for that family life under article 8. There is no basis for supposing that he could provide a home for E. Steps would have to be taken to identify who he is. It is possible that he is in fact fully employed and in a long-term relationship with someone else. There is no suggestion that he already has a family that E could join. The prospects of his being a long-term carer are too intangible to justify a delay in making a placement for E.[47]Miss Hamilton makes the point that, since disclosure is a matter of discretion for the court or adoption agency, a pregnant woman proposing to place the child, when born, for adoption without the consent of the child's father, ought to be advised at an early stage that this may not be possible as a matter of law. I agree.

Order

[48]I would grant permission for this appeal and an extension of time to do so. I would allow this appeal for the reasons given above. I would also give the further directions proposed by Thorpe LJ. These directions will pre-empt the guardian from taking further steps to identify the father, which she has indicated she would like to do.

Lord Justice Lawrence Collins:

[49]I agree that the appeal should be allowed. The short point is that the judge misdirected himself in holding that the local authority was compelled by section 1 of the Adoption and Children Act 2002 to (as the judge put it) “inform themselves as of as much information about the background of the extended family as they are able to do.”[50]By section 1(2) the paramount consideration must be the child’s welfare. Section 1(4) requires the local authority (and the court) to have regard to a number of matters including (in section 1(4)(f) “the relationship which the child has with relatives”, including the ability and willingness of any of the child’s relatives to provide the child with a secure environment in which the child can develop, and otherwise meet the child’s needs (section 1(4)(ii)) and the wishes and feelings of any of the child’s relatives regarding the child (section 1(4)(iii)).[51]Although a strictly textual interpretation of section 1(4)(f) might support the view that it applies only to those relatives with whom the child has a relationship which goes beyond the mere status of a relative, I see no basis for giving it such a restricted interpretation. Consequently I am satisfied that it includes relatives who do not know about the child’s birth, and included the grandparents and the putative father.[52]But that does not mean that the local authority was under an obligation to approach the grandparents or seek out the father. The local authority has to decide whether to place the newborn baby on a fast track adoption under section 19 or explore a family placement. It cannot follow from the fact that a local authority must have regard to the matters in section 1(4) that, in carrying out that exercise, the authority is compelled to inform the grandparents and assess them, or to seek to discover the identity of the putative father.[53]Grandparents have an Article 8 right to respect for family life (Marckx v Belgium (1979) 2 EHRR 330, at [45]. Whether the right extends to the potential relationship between a natural father and a child born outside marriage under Article 8 appears to depend on the circumstances, including the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the natural father to the child both before and after the birth: Rozanski v Poland, App 55339/00 (2005).[54]But that does not mean that a potential relationship is outside the protection of Article 8. In Pini v Romania (2005) EHRR 1, at [143] the European Court of Human Rights said (in the context of persons who had obtained adoption orders but had not had custody of the children):
“By guaranteeing the right to respect for family life, Art.8 presupposes the existence of a family, [citing Marckx v Belgium, [31]; Johnson v United Kingdom (1999) 27 EHRR 296, at [62]] although this condition would not appear to be fulfilled in the present case in the absence of cohabitation or any sufficiently close de facto ties between the applicants and their respective adoptive daughters either before or after the adoption orders were made. However, in the opinion of the Court, this does not mean that all intended family life falls entirely outside the ambit of Art.8. The Court has already considered in this context that this provision could also encompass the potential relationship that might develop, for example, between a natural father and a child born outside marriage [citing Nylund v Finland] or the relationship that arises from a marriage that is not a sham, even if a family life has not yet been fully established.”
[55]The putative father has, until the child is adopted, a potential duty to support the child. Even if the father’s potential relationship might in the future come to be protected as an Article 8 right, where the father does not know (or care) about the existence of the child, it would be difficult to envisage a situation in which there could be an interference with the exercise of that right. In any event, even if Article 8(1) were engaged, the protection of the rights of the mother and child would plainly justify the interference with any such right.[56]In the circumstances of this case, this court must exercise the discretion, and I agree with Arden LJ that the overriding need is to find the child a permanent home as soon as possible before the bond with the foster parents develops even further. Lord Justice Thorpe[57]I have had the advantage of reading in draft the comprehensive leading judgment of Arden LJ with which I agree.[58]It seems that there are no statistics as to the number of young mothers who seek to conceal their pregnancy, avoiding antenatal preparation, and who then abandon their new born baby immediately on birth, relying on the State to find an adoptive family. In this jurisdiction the birth of the child must nonetheless be registered. The register will reveal the date and place of birth and the identity of the mother.[59]In France law and tradition have since the 18th Century permitted anonymous birth. If a doctor or midwife was involved in the delivery he or she had to declare the birth but was not required to indicate the names of the parents. The rationale for the acceptance of anonymous birth was that it protected families from conflict and it reduced the risk of the crimes of abortion and infanticide.[60]In the 20th Century the availability of female contraception and lawful abortion has reduced the significance of the right to anonymous birth. Furthermore the rights of the child have become equal or greater than the rights of the mother. Nevertheless the right to anonymity was declared in Article 341-1 of the 1993 Civil Code. It was not until the law of 22nd January 2002 that the legislation sought to strike a balance between the rights of the mother and the rights of the child. The law improves the opportunity of the child of anonymous birth to search out its biological origin. However the ultimate veto remains with the mother. Registers of information are in place to lead the searching child to the mother’s door but the child has no right of entry if the mother, despite counselling, refuses to unlock it.[61]The law and custom in France is of some relevance because it illustrates that there is not one lawful answer alone to the tension between the rights of the mother and the rights of the child. It also reminds us that there are valid social policy considerations for permitting the mother to treat the experience of pregnancy and birth as a private experience, even if engaging maternity services and duly registering the birth.[62]For the information that I have as to the law of France I am indebted to Judge Mondane Colcombert of the Paris Court of Appeal (and now a member of the National Council on Access to Information about Personal Origins (CNAOP)) and the paper that she gave the Anglophone/Francophone Family Law Judicial Conference in June 2007.[63]Turning to the facts of the present appeal they are on any view extraordinary. I need only refer to the mother’s success in concealing the pregnancy from her family, her employers and her fellow employees. Her immediate request that her daughter should be placed for adoption at the earliest opportunity was entirely consistent with all that she had done and all that she had not done prior to the delivery.[64]She probably did not appreciate that by leaving her baby E in hospital E became, to use the statutory language, a looked after child pursuant to Section 22 of the Children Act 1989.[65]Her actions certainly challenged the Social Services team brought in by the hospital. None of them had encountered such a situation in recent years. Their response was understandable but, in my view, misjudged. On the 16th July 2007 they issued an application for a care order under part IV of the Children Act 1989. At the date of issue E was in the safe hands of foster carers who had taken her from hospital three days previously. Inevitably the application had to aver that E was suffering or was likely to suffer significant harm attributable to her mother’s care not being what it would be reasonable to expect a parent to give to the child. Section 31 of the Children Act 1989 demands that averment. But it was hardly appropriate since the appellant was not proposing to play any part in E’s future life, an abstention that is not unlawful. Furthermore care order applications are inherently contentious and frequently give rise to bitter litigation.[66]However in fairness to the Local Authority I believe that the real objective of the issued application was to share their responsibilities and their dilemma. In stating their plans for E they included: - “Make an application to a High Court Judge to request guidance on whether extended family members should be approached. Mother may change her mind in relation to caring for her daughter. It is unclear as to whether she wishes to take up any contact.”[67]As to the directions sought the application stated: - “Interim care order to enable the Local Authority to share parental responsibility. Transfer to High Court to enable a High Court Judge to consider whether the Local Authority should contact extended family members against mother’s consent.”[68]Properly analysed the situation did not call for public law proceedings but rather proceedings under the Adoption and Children Act 2002 (hereinafter “The Adoption Act”). In my view it was perfectly open to the Local Authority to seek those directions within or by means of an application issued under the Adoption Act. As Munby J points out in his judgment in re L, Rule 108 of the Family Proceedings (Adoption) Rules 2005 provides for applications for directions relating to fathers. That course would have better fitted the facts and circumstances, have avoided unnecessary contention and achieved a swifter listing before the Family Division judge.[69]Another disadvantage of the procedural choice was that it undoubtedly led all the professionals in the case to assume the duty and responsibility that arises in any application for a care order to explore profoundly the possibility of a placement, if not with a parent, then within the extended family. It diverted attention from the opportunity provided by Section 19 of the Adoption Act to fast track E into adoption in accordance with her mother’s wishes.[70]As the chronology shows the care order application once issued took a conventional path from the family proceedings court to a listing before one district judge in the county court on the 8th August and then to another district judge on the 4th September.[71]Another consequence of the issue was the appointment of a Guardian ad Litem for E on the 3rd September 2007. The guardian appointed, like her social services colleagues, had not encountered such a situation before. Not unnaturally she interpreted her responsibilities for E as demanding the exploration of a placement with either parent and, failing that, the extended family on one side or the other.[72]Thus was quickly forged a conventional alliance between the Local Authority and the guardian, presented to Judge Taylor as a forceful case overbearing the mother’s consistent and persistent attempt to ensure that E would be swiftly adopted by a suitable family. But the alliance approached the case as a conventional contested public law case and the issues discerned and the judgments taken were all in that context. There was no focus on the option of a Section 19 fast track adoption and the advantages that that might achieve for E.[73]His Honour Judge Taylor quite rightly questioned the suitability of the Local Authority’s application for an interim care order. Counsel did not demur and the application was not pursued. I was concerned to learn that on the 1st November 2007 the Local Authority gave telephone notice to the mother’s solicitors of an intention to pursue the interim care order application. They obtained a hearing for directions on the 9th November which we were able to stay. Thus the order of the 28th September did not extend beyond the directions sought by the Local Authority. It provided: - “The Local Authority be at liberty to disclose after twenty-one days namely after 19th October 2007, the existence and identity of E M C (dob 9/7/07) along with any relevant information regarding her, to the extended maternal family and if identifiable the putative father and any extended paternal family, the mother’s objections having been carefully considered but overruled in the interests of the subject child.”[74]Mr Todd, counsel for the local authority, discussed the form of the order with the judge and he undertook the drafting. In the recorded exchanges it was clearly intended that the order should only go in relation to the putative father “if identified”. The passage from “identified” to “identifiable” was clearly unintended.[75]In his careful judgment Judge Taylor reviewed all the relevant facts and the authorities in point, all of which predated the commencement of the Adoption Act. He then turned to Section 1 of the Adoption Act and particularly the checklist in Section 1(4). He construed that section to remove the discretion which had been exercised by judges during the currency of the Adoption Act 1976. For he said: - “26. Quite clearly this has made significant changes to the emphasis upon on how these matters are approached and there is now a duty to make those enquiries and it seems to me that the law is now quite straightforward. The Local Authority have no choice, they are under a duty to inform themselves of as much information about the background of the extended family as they are able to do. It may well be that somebody suitable is in a position to come forward and offer a home for this child and if so then obviously it will be in the interests of this child to be placed within the family. Of course before that were done the mother’s wishes would be taken into account in relation to any placement, but the reality is the consideration needs to take place. 27. When one looks at the likely effect on the child throughout her life one has to concentrate on the child and not the mother’s wishes and the reality is – as we all know nowadays – that when children are adopted they come to a time in their life when they do enquire about their parentage and it would be cruel in the extreme to prevent this child having as much knowledge as possible about her background in the event that she is adopted, even if that information comes without the consent of the mother but as a result of the authorities informing themselves of the appropriate information.”[76]With respect to the learned judge I differ on the point of construction. In my judgment the Local Authority and court still has to exercise a discretion in what Miss Hamilton QC, counsel for the mother, has called the secret birth case as to whether to place the new born on the fast track to adoption under Section 19 or to explore a family placement. The outcome of that discretionary balance will of course always depend on the facts of the individual case.[77]As to Judge Taylor’s second point, if a fast track adoption is to be the preferred option, E is not thereby deprived of opportunities to explore her biological origin as she achieves maturity.[78]Thus I would allow this appeal on the simple basis that the judge misdirected himself in concluding that the Adoption Act compelled the Local Authority and the court to inform and assess all and sundry. The error denied the mother the discretionary appraisal to which she was entitled. We are in as good a position as the judge to exercise that discretion and accordingly there is no case for remission.[79]In exercising the discretion I am of course having regard to the facts of this particular case. Fortunately the information as to the mother’s family and as to the putative father is not lacking. We have the mother’s statement to the Local Authority and the statement of her parents given to the Local Authority on the 29th October as a consequence of the Local Authority’s unfortunate approach to the parents by letters of 17th October. Mr Todd accepted that we should proceed on the basis that the information contained in those documents was agreed by the Local Authority. After taking time to consider her position Miss Rowe QC also accepted that the information in those documents was common ground.[80]Given the difficulties that have been caused for the appellant by the Local Authority’s mistaken approach to her parents it is particularly important that this court should not by its judgment exacerbate the mother’s difficulties. Any detailed review of the facts agreed between the parties would only further jeopardise the privacy that the mother seeks.[81]However the information contained in these documents is clearly crucial to the exercise of a discretionary judgment as to whether swift placement with a family selected as ideally suited to parent a child for life would better promote E’s paramount welfare than breaking open the mother’s secret and seeking a possible family placement, preceded by extensive investigation of the maternal and paternal families. (I add the paternal family since, although the father is at present unidentified, he is probably identifiable.) The information that we have as to the mother’s family and the information which we have as to the father’s circumstances clearly militate against the second course. Equally Section 1 (3) of the Adoption Act militates against the second course. Exercising an independent judgment I am in no doubt that E’s interest would be best served by a fast track placement for adoption. I reach that conclusion without even factoring in any consideration of the mother’s rights to privacy and to autonomous choices.[82]However I would add that I accept Miss Eleanor Hamilton’s submissions on the importance of respecting the choice of a young mother who found herself in a terrible dilemma. There are good social policy reasons for accepting the option of a private birth as the law in France and ECHR decision of Odièrve v France [2003] 1 FCR 621 recognise. If we were to dismiss this appeal we would be effectively precluding private birth as a prelude to fast track adoption in almost every case. Miss Rowe avowedly did not contend for that but when asked to identify what factors or circumstances precluded the mother’s wish in the present case she could offer no clear answer.[83]Accordingly I would allow the appeal and set aside the order of Judge Taylor. I would further direct the Local Authority and the Guardian to take no steps: -(a) To identify the father or to inform him of the birth of E.(b) To introduce E to her grandparents or to assess them as potential carers for E.(c) I would further direct the Local Authority to meet the maternal grandparents to discuss with them their letter of the 29th October 2007 and to explain to them the outcome of this appeal.

Cited in 31 later judgments

and 22 more of the most senior