Public Law
February 2023

28 April 2023
Consideration of a birth father’s right to be notified prior to adoption
Re M (Adoption – notification of birth father)[2023] EWFC 17

Consideration of a birth father’s right to be notified prior to adoption. A 21 month old boy (“M”) was placed with prospective adopters when he was a day old. M’s mother C was twenty-one when she gave birth to him, she was not in a relationship with the birth father. C did not wish the birth father to know of the pregnancy, of M’s birth, or to have any say in the very difficult decisions she made for M. C says she was supported in her decision not to tell the birth father about M by social workers, who told her that the decision was hers to make, she did not have to disclose the birth father’s identity, and her wish for confidentiality would be respected. Both domestic and European law in this area stress the importance of engagement of the wider family in the adoption process. Any request for an adoption that excludes a father or close family members should be closely scrutinised. The local authority could not compel C to disclose the birth father’s identity but did have a duty both to critically analyse C’s reasons for refusing to disclose, and if considered appropriate, to make its own independent enquiries as to the birth father’s identity. The local authority did not explore with C the reasons for her refusal in any detail, did not take any steps independently to find out the birth father’s identity, and did not seek advice from its legal department as to how to proceed. On 11 March 2022 the prospective adopters applied to the Court to adopt M. The first hearing was listed on 6 June 2022 at which the court declined to make the adoption order, the Court could not do so without first having considered the question of whether or not the birth father should be notified.

The case of A, B and C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 41 is the leading authority. In his leading judgment, Jackson LJ at paragraph 86 described the procedure that should be adopted in situations of this kind:

86. A local authority, faced with a baby that may require adoption, either because a mother wishes to relinquish the baby for adoption or because there are proceedings with a plan for adoption, will be acutely aware of the need for a speedy decision. Where the mother requests confidentiality, it will need to decide at a very early stage whether an application to court should be made to determine whether or not the putative father or relatives should be informed and consulted. There will be cases where, applying the principles summarised in this judgment, the local authority can be very clear that no application is required and planning for placement on the basis of the mother's consent can proceed. But in any case that is less clear-cut, an application should be issued so that problems concerning the lack of notification do not arise when adoption proceedings are later issued. In relation to a putative father, that application will be under Part 19 unless issues of significant harm have made it necessary to issue proceedings for a care or placement order; I would suggest that an equivalent application under the inherent jurisdiction can be made where a local authority has doubts about notification of a close relative.

87. …. It is not for this court to determine local authority procedures but I record the parties' agreement for the help that it may give to those facing these situations.

"1. A local authority should take these steps as soon as it is notified that a mother, or mother and father, are expressing a wish that an infant is placed for adoption without notification to either the child's father or extended family:

(i) The local authority files should be checked for background information about the mother and extended family and for contacts with other relevant agencies, such as health and police.

(ii) The allocated social worker, ideally accompanied by an adoption worker, should undertake at least one visit but preferably a series of visits to the mother, or mother and father, if she/they are willing, to discuss:-

• The decision to place the child for adoption.

• The reasons for not notifying the child's father, or extended family, where possible gathering details about the father's background and that of the family.

• The mother's background and information about her family.

• Any cultural issues and how they have affected the decision made by the mother, or mother and father.

• The implications of adoption for the child

• The legal process required to achieve adoption

• Other possible options for the care of the child

• The adoption counselling service and how to access it

• Whether the mother, or mother and father, require any other form of support and how that might be achieved

No assurance should be offered to a parent during the social work visit/s that notice of the birth of the child will be withheld from the father and/or extended family members.

(iii) The mother, or mother and father, must be provided with written information, where available, about the process and adoption counselling services.

(iv) Where the father is identified, the local authority should check its records for any background information known about him.

(v) The placement team must be informed immediately and it should begin the process of finding a suitable placement, preferably with 'foster for adoption' / early permanence carers.

(vi) CAFCASS must be informed as soon as the local authority is notified so that it can allocate a worker to the case for the purpose of meeting with the mother, or mother and father, to discuss and where appropriate take consent for adoption.

2. The local authority should critically examine all information that it receives and, in circumstances where the mother states the identity of the father is unknown to her, the local authority should carefully consider her statement and her explanation to consider whether there is any basis for considering that the statement might be false. If the local authority does form that view, it should consider if there is any reasonable way by which the identity of the birth father could be established.
3. The social worker should, as a matter of urgency, seek legal advice to ascertain whether the matter should be placed before the court in all cases where:

(i) the mother opposes notification to the father, if identified;

(ii) the mother knows the identity of the father but is unwilling to disclose this information;

(iii) the local authority has reason to doubt the reliability of the mother's claim that the identity of the father is unknown, or

(iv) the mother is opposed to any notification to her family or the father's family.

4. The legal advisors will need to consider and advise as a matter of urgency whether a Part 19 application or other proceedings should be issued.
5. If a decision is made that a Part 19 application is not required, the local authority should immediately notify CAFCASS, and provide detailed reasons for that decision, to allow CAFCASS to consider this information prior to meeting with the mother, or mother and father, when discussing consent under section 19 or for any later adoption application.
6. As non-means/non-merits tested public funding is unavailable to parents for a Part 19 application (and emergency funding may be difficult to access on an emergency basis even if merits and means tests are met), a local authority should provide the mother, or mother and father, with advice concerning access to independent legal advice and how that might be obtained and funded (including by the local authority considering the funding of such advice). A list of specialist solicitors available in the area should be provided.
7. Where an application is to be made, the social worker should prepare a detailed statement setting out the information gathered and providing the local authority's position regarding the wish of the mother, or mother and father, to relinquish the child without notifying the father and/or extended family members."

The social workers did much to take care of this vulnerable young mother at a difficult time. However, there were serious errors in the local authority’s processes and procedure in relation to the birth father. The local authority has accepted full responsibility for its failings and pledged to carry out a full review and learn lessons.

In July 2022 the local authority made an application under Part 19 of the Family Procedure Rules 2010. The local authority invited the court to invoke the inherent jurisdiction through a procedure analogous to FPR 2010 r.14.21 whereby ‘an adoption agency or local authority may ask the High Court for directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption’. This procedure, engaged through FPR 2010 r.19.1(2)(b) and r.19.2(1)(c), is that approved by Cobb J. in Re RA (Baby Relinquished for Adoption) [2017] 1 FLR 1610. Part 19 FPR 2010 may be used where Part 18 does not apply and, as here, ‘the applicant seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact’. Rule 19.2(1)(c) specifically applies in relation to a r.14.21 application for directions regarding fathers without parental responsibility. In July 2022, the local authority was asking the Court to sanction the mother’s decision not to notify the father, the local authority at this hearing supported notification. C opposed notification and the prospective adopters do not press for a particular outcome on the question of notification.

All parties agreed the approach advanced so clearly by Peter Jackson LJ in Re A, B and C (Adoption: Notification of Father and Relatives) [2020] EWCA Civ 41 should be followed. At paragraph 59, he gives the following summary:

59. Pausing at this point, this body of authority at first instance and on appeal affirms that 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.

Jackson LJ later summarises the approach the Court should take in determining the application. At paragraph 89:

“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.

There is no single test for distinguishing between cases in which notification should and should not be given. However, Peter Jackson LJ identified a number of factors which will be relevant when reaching a decision. The Judge considered each of these in turn, parental responsibility, Article 8 rights, the substance of relationships, the likelihood of a family placement being a realistic alternative to adoption, the physical, psychological or social impact on the mother or on others of notification being given, cultural and religious factors, the availability and durability of the confidential information, the impact of delay and any other relevant factors. The Judge weighed up the advantages and disadvantages of the two options, summarised at paragraph 115. The Judge concluded that on the facts of this case, the birth father should be notified of the fact that he has a son and that he is living with prospective adopters. The Judge was not satisfied that the evidence showed there to be an objective basis for discounting the father from consideration of the contribution he could make to M’s life. Not notifying the birth father at all, or notifying him only after his chance to participate in the process had passed, would be cruel and unfair to him, and to M. It would deprive M of the opportunity for his right to a family life with his father to be explored before an adoption order is made, or for his birth father to give his blessing to the placement. There may come a time when the Court can push her no further. The court directed that there be a further period of time, during which consideration may be given to:

(i) The availability of information in the public domain that may lead to identification of the birth father;

(ii) Other steps that the local authority may reasonably take in order to discover the identity of the birth father;

(iii) Some further reflection by C in the light of this decision.

A further hearing to consider the way forward.

The Court of Appeal gave guidance on the correct procedure for extracting relevant mobile phone material in care proceedings
Re P, H-L (Children) (Mobile Phone Extraction)(Rev1)[2023]EWCA Civ 206

The Court of Appeal gave guidance on the correct procedure for extracting relevant mobile phone material in care proceedings including how the rights of third parties are protected when such extraction is ordered. The evidence had not been obtained by the police by the way of mobile phone extraction. It was an appeal against a case management decision made by HHJ Major on 15 December2022 during a fact finding hearing in care proceedings. Findings were sought of sexual and physical abuse of the children allegedly perpetrated by the respondent father. The order in question granted permission to the first respondent in the appeal (the father) to instruct an organisation called Evidence

Matters to conduct a mobile phone extraction exercise in respect of a mobile phone formally belonging to his daughter ("S"). Thereafter, provision was made for Evidence Matters to file a report to be sent to counsel and solicitors (but not the parties) disclosing all messages and social media communications as between S and the father, S and her former boyfriend ("G"), and S and three of her friends (all of whom were under 18).

The Children's Guardian who represented S in the care proceedings appealed against the making of the order, although only in respect of the numerous communications between S and her friends, submitting that the interference in the Article 8 privacy rights of the three friends was such that the court should obtain the consent of the parents of each of the friends before the material could be either downloaded by Evidence Matters or disclosed into the proceedings.

The court rejected the primary argument of the Guardian that the Judge was in error in making an order for mobile phone extraction without having the consent of the parents of the friends. However the appeal was allowed to a limited extent to vary the time frame to be covered by the extraction and to provide a method of sifting the material extracted before its disclosure to the parties. At paragraph 3 Lady Justice King stated that, “this process will ensure that only material relevant to the allegations, which tend to support or undermine the allegations of acts of a sexual or violent nature (towards S or J) made by S against the father, will be disclosed and that the privacy rights of third parties will be protected so far as possible, by a strict application of relevance, redaction and proportionality.

King LJ gave the leading judgment in which she considered the approach to be followed in cases in which the police had not undertaken mobile phone extraction. King LJ acknowledged that in this specific situation there is an absence of specific guidance in the Family Procedure Rules. Where there is gap in the FPR the court can look to the CPR for assistance. However this was a case where there was an absence of specific guidance in the FPR and CPR, as such at paragraph 63 King LJ noted that, “…a judge can, and in this case should, draw upon good practice in the criminal court in order to inform the conduct of the family court proceedings.” And noted that this was precisely the type of procedural matter the President had in mind Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448.

King LJ referred to the Attorney General’s Guidance 2022 that applies to investigations where mobile phone data is to be extracted and stated that, “It would therefore in my judgment be inappropriate in those few cases where the family court has to order mobile phone extraction, for the family court to adopt a radically different approach from that adopted by the police under the umbrella of those guidelines, issued as they were following detailed consideration by the Information Commissioner of the same privacy issues which arise in the present case.” Paragraph 64.

At paragraphs 65 – 70 King LJ went on to provide further guidance as to how courts should approach application and directions for extraction of mobile phone material:

  • the court’s focus will be on the relevance of the material as a whole and in making case management orders which are not only proportionate in terms of cost and management, but which also protect so far as is possible the privacy rights of any third parties in much the same way as is done by the police under the AG Guidelines. Paragraph 65
  • In common with usual police practice, this will not involve routinely giving notice or seeking the consent of third parties who have been the recipient of social media communications from the user of the mobile phone in issue. Paragraph 65
  • it will ordinarily be unnecessary, prior to the mobile phone extraction process, for third parties to be given notice or for the consent of the parents to be sought where minors are concerned. Paragraph 68
  • Rather, it will involve a conscientious sift of the material for relevance once the material has been downloaded and thereafter careful redaction which is as described by Annex D a ‘vital tool, mandated by law, to protect fundamental rights when personal data is handled. Paragraph 65
  • Such a conscientious sift to be undertaken by a lawyer appointed by the local authority.
  • only relevant and appropriately redacted material will be disclosed to the court and to the parties. Paragraph 68
  • the court must conduct a proportionality check and consider the competing Article 6 and Article 8 rights which are in play. Paragraph 67
  • Each case will turn on its facts. It may be that the nature of the case and the contents of the communications exceptionally mean that, following the local authority sift, consideration does need to be given to a particular third party being put on notice in order to make representations should they choose to do so. Paragraph 70

The judge was right to order Evidence Matters to conduct the mobile phone extraction. The Judge was correct to conclude that it was not necessary to seek consent of parents before the extraction took place nor was it a disproportionate interference with the friend’s article 8 rights. Where the Judge erred was in the timeframe for the period of material to be extracted, the Judge approving a period of 3 years, Court of Appeal defining the relevant period to be approximately 18 months. Further the Judge erred in having ordered the whole extraction report to be disclosed to counsel and solicitors absent any sift for relevance or any redaction. The appeal was allowed to a limited extent “in order to enhance the protection provided to the privacy rights of S’s friends and any other hitherto unidentified third parties.”

Lord Justice Baker and Lord Justice Bean agreed.

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