Good morning. Everybody hope you're well and thank you very much for joining me today on this session through data law. Destiny session too on this title which looks at placement for adoption relinquished Children and the position surrounding winter father and extended family are to be notified. My name's Safta Mahmoud. And as you'll be aware of what I'm doing is going through these two sessions. This the second session where I'm going through somebody regulations with in so far as the expectations as to notification otherwise and all sort of developing and leading in recent case law. Okay, so this is like the second session. You remember the first 1? I spent some time with the adoption agency regulations of 2005. And also I looked at the case law surrounding notification and also the position with whether the child should be informed of the true identity. Today, I'm going to be looking at two other developments uh relating to the issue of notification. I'm looking at the Laws of October 2021 and I was always up made the reference to the copyright acknowledgement here. Right? So the first case I wanted to look at today is the case of a B and C adoption notification of files and relatives. This was a quarter of your decision in january 2020 and it's it's a very detailed judgment this one but one which I think is absolutely essential. I think what it does. It pulls together a lot of the law from many, many of the previous judgments by many of the base's senior judges all together into one. It's a very useful judgment. This one, it is like so lengthy and it's one that will take your time to read and digest fully. So what I'm going to do then is to go through with you and really emphasis some of the key elements of this judgment. So the case itself involved three appeals and these related to babies with their respective mothers who had concealed their pregnancies and I don't wish to fathers and other relatives and other Children's birth. So it's very similar to the cases That have just recently looked at for the purposes of part one of this session. And therefore the issue in all three of these cases was very much very much along the same lines as in the previous decisions. Which is issue is whether the local authority in the court would notify the fathers, relatives before plans for the Children's future was made. And in two of the cases, the mothers wanted to chart Children place adoption. So it came back to the issue of notification again And this is where his lordship or Justice Peter Jackson, Who 111 Judgment In pages 29-31 of the judgments specifically referred to the concept of what What's sometimes referred to by two senior judiciary as as fast track adoption as it's referred to, which I know sometimes people we'll have a view on that in terms of what's meant by that. But essentially, his lordship said that the adoption Children in two 1002 allows for what's called consensual adoption? Not as fast track and what his lordship was referring to of course Is sections 18, Section 19, Section 20 of the adoption Children Act of 2000 and two. And this is where section told the act does permit placement for adoption. Either with a parental consent On the section 19 or finding replacement toward us. So many of you will be familiar with the fact that if one is in cape ceilings and then the local authority lodge replacement application then of course that placement order coming made with parental consent. But more times than not you'll find that the local authority will be seeking to invite the court dispense with parental consent pursuant to section 52, subsection one of the adoption of Children in 2002 on the basis that the welfare of a child requires the consent to the dispensary under section 51 B. Which is more common One or section 51. Do you want a which is where the parent cannot be found or is incapable of giving consent. But as a replacement order is being sought and that's where the consent is not forthcoming. And that's why it's non consensual adoption and hence the need for seeking replacement order. And that's where we be That 2013 decision the Supreme Court decision is obviously very, very significant to have a non consensual adoption. But what if as which some of the cases I've just already discussed with you. What if you got mother and sometimes father with pr who are they doomed proceedings or indeed outside proceedings seek for the child to be placed for adoption and it subsequently to then be adopted. And that's where the section 19 and the section 20 of the comes into play. And that's where the so called fast track adoption. So it is possible of course for the mother for example to consent to a child being placed outside proceedings. And as we said earlier that utility. Uh huh and Regulation 20 Schedule two of the Adopctions Agency Regulations two 1005 come into play whereby we refer to cast cast cast cast commentary with the necessary information so that reporting officer to Kafka's officer will go out and see mother and father. If he's got poet responsibility and invite them then to sign the consent forms. And there's various types of consent forms. There's the section 19 the various forms there And then there's this section 20 adoption. Children up forms as well. So parent can agree to placement for adoption with either identified adopters already identified or those who have not yet been identified. We've got various forms of consent in that regard. So that's where this comes in and interestingly if you've got the mother for example who can sense the child being placed For adoption and father does not have parental responsibility then this is where section 52 subsection six of the act comes into play And also part 14 of the family procedurals. Because these states that father without parental responsibility is not an automatic responded to proceedings, replacement order, an adoption order. So what you'll find is if the mother is the Only hold your the parental responsibility and she consents to section 19, section 20 of the 80002. In that situation, the father who doesn't have parental responsibility is deemed to have agreed to that also in those circumstances, even though he doesn't have, he has not been notified in those circumstances and informed. Now, where do we then stand with the position of making inquiries? Because of course, some of you who represent local authorities will have situations where, said, a social worker may contact you and say, look, mother and father wished for the child to be placed for adoption, but I don't wish maybe the maternal and paternal family to be told. So where do we stand there bearing in mind or a B B. B. S in that regard? And what his lordship did say at Paragraph 66 of the judgment in particular is that it is possible in appropriate cases to place a child for adoption without notification to the father or relatives. And in fact, there is no statutory obligation on a local authority to make inquiries in every case. I think that's the mistake sometimes lawyers making and advising social workers that there is a requirement to make inquiries in every case. And also, as many of you will know, there is no presumption, Lord says that one has to assess what family and friends. What there is, of course, is our duty to look at the feasibility, the available the possibility the viability of and that's where you've got, for example, the adoption Children at 2000 and two. The welfare check list in this section one. Subsection four, paragraph F. For example, you're looking at the feasibility of the child remain a member of the original family relationship that child has with the original family and with any other person, including any prospective talk to, that the child has been placed with, which isn't the same as saying that there is a duty to assess, but there is a duty to consider the wider family and the possible vibrancy of that's the important thing. There is no such presumption to place with indeed, to assess in those circumstances. one of the other things, of course, his lordship did emphasis is the urgency and thoroughness of the procedures referred to The powers of paragraphs 86 to 88 of the judgment and as you will appreciate time is very much of the essence in these types of cases. So, what his lordship emphasis is that when a local authority is faced with a baby that may then require adoption either because you may have the mother who relinquishes the baby or because there's proceedings for adoption uh with a plan for adoption. And this is where many of you will know that density adoption standards for example, it sets out the need to ensure that we keep delayed with absolute minimum minimum standards in terms of placement for adoption and adoption. But also is his lordship said there is a need to act with uh by way of a speedy decision. So this is where his lordship specifically said that there will be cases where the local authority can be very clear that in fact no application is required by them to pursue placement for adoption on the basis of the mother's consent. So they are satisfied that the mother has consented. She her consent is unequivocal. It's unconditional. It's an informed consent, she has capacity. So in those cases it will be quite clear that they don't need to apply to the court for any order to give them the determination that or the declaration that this would be appropriate. But where it is less clear cut i. E. There is information made available of a father and extended family members and it doesn't seem to be sufficiently to rule them out potentially as potential viable options order, reasons the mother is giving perhaps are not as clear cut. It's not as clear on the fact that her reasons are perhaps as legitimate was genuine and that's where the local authority made those cases feel it appropriate to put an application before the court to then consider the issue of notification otherwise. And that's where his lordship said that really the need to consider and address that needs to be done sooner rather than later in these circumstances to ensure that delays. Absolutely minimizing these circumstances. So therefore, if there is a need to do that. If, for example, the local authority are going to be bringing An application before the court as to whether or not to notify the PhD father, for example, that the application will be made under part 19 of the family procedures. It's effectively a preemptive application which you can then make before in care proceedings before replacement proceedings before the adoption proceedings. So, it's a freestanding application that one can make in court. And it would ordinarily be an application whereby you are then invited record to declare as to whether or not the putative father is to be notified of the child's existence in those circumstances. And if of course there are concerns of a significant harm threshold Matter, I'd like to be met. And of course one may then be commencing casings in any event. So, you're looking at that. And in so far as close relatives are concerned, his lordship said that an equivalent application be made underneath inherent jurisdiction with the local authorities doubts as to whether or not to notify close relative rico. Okay. Now, what the principles then. So what the principles as to whether the father and indeed the extended family should or should not be told. His lordship did say that there are no there is no single test for distinguishing between cases in which notifications should and should not be given. It's a question really of looking at previous case law has said and also pulling together a lot of the factors in coming to that decision. So like say this case A B and C is very useful because what it has done is actually enabled us to look at the various factors which the court will then consider as to whether or not to notify in these circumstances. So let's have a look at the sea what these factors are. It's the first and foremost issue of parental responsibilities. This is the first thing that one then needs to consider parental responsibility. So one needs to ask themselves does father have parental responsibility for the child? The fact that he does have parent responsibility of course then gives them the right to be able to withhold or consent to adoptions. Of course if he does have Pr mother's consent for the purpose of section 19. Section 20 of the CIA would not be sufficient. You're going to require the fathers as well as obviously having PR is very important. Plus having parental responsibility of course gives him party status as you know in any perceives relating to adoption. So if for example the child is placed as prospective adopters, they then lodge the adoption application. The father will obviously be notified as well. The mother in those circumstances and his lordship did say that the case law has established that a father does have parental responsibility. There has to be very strong reasons before. One does not notify him. There was a case some years ago, for example, whereby the mother gave birth to her child, he was able to conceal her pregnancy from her own husband with whom she was living with. She was very worried about the implications of him finding out given that she had a child in the circumstances that she did. And she was very worried about the implications on him upon her and the baby, the father was told ultimately because they were married because he had parental responsibility made it that much more difficult to not inform the father. In fact, the compelling reasons were not there withdraw withhold information. In fact the husband in that case was told and in fact kind please he didn't accept the news much better than she thought he would. And in fact matters took a different hole. So obviously having parental responsibility very, very different. Different significant in that regard. And then we've got Article eight rights as you'll appreciate the father whether he's got parental responsibility or not. Uh Indeed as well as the relatives, they of course have potential family life either established or potential family life in that regard. And therefore one has to in those circumstances. Look at whether or not the Article eight rights are such that they should be notified in those circumstances. Well, one of the other key elements the court expect the local authority to look at. And for the court to determine in deciding whether or not the father and indeed extended family are to be notified or not. Is the issue of the substance of the relationship? Okay, so whether father does have pr or not, you're looking at the substance sort of relationship between the parents. And this is where you looking to see uh was it for example, a fleeting relationship between the father and the mother for example, Or were they actually in a substantial relationship with the together for some period of time? Because of course if it's the latter, then that would then lead to there being a stronger, articulate argument therefore would lead to their four more of a need for the father to be notified. So, you're looking at the substance of the relationship and how of course that then led to the child coming into existence thereafter. So you're looking at that, Then you're looking at .4 which is looking at the likelihood of a family placement being a realistic alternative to adoption. So this is very important. Which is where by one would then need to weigh up what is the possibility of actually placing with family and or circumstances and one of the things his lordship did say is that you can't just go on to say so of the mother or father if he's got pr So just because mother is saying on which to place a child for adoption, it doesn't mean that the local authority ical with that basis. They do have to look at the possibility of investigating to see whether family placement is a realistic alternative. This is what we Bs comes into play. So, inquiries need to be made in those circumstances to see what is known about the family. And as I mentioned, the previous case that I mentioned, one has to look at what is known about the father, what's known extended family. But then of course, one also has to look at if there is notification to the father and the extended family. What are the physical psychological or other risk factors on the mother or others in modifications to given. So what are the risks if the father and extended family were told in those circumstances? So, in some of these cases, for example, you'll find that there may be a situation where the child was born as a result of sexual violence as a result of the mother being raped. For example, there's a there's a risk, there may be a risk that the mother may be off the size of the community. Could be concerns over her mental health, who may be very young and therefore possibly more vulnerable in those circumstances. So one of those factors need to be weighed up. Therefore, to look at whether there are physical psychological risk factors, social impact on the mother is which then would lena against giving not providing notification in all circumstances. So that also needs to be tied up and considered in these circumstances. You're then looking at other factors. So, for example, cultural and religious factors, for example. So there could be religious, cultural aspects here. So for example, a mother has a baby out of wedlock, for example, then what's the what's the risk factors to her too? That impact upon heard impact upon her side of the family, for example. So that needs to be weighed up. You're looking at the availability and durability of the confidential information and therefore you can only obviously notify if if you are aware of the information. So what if the mother simply doesn't tell you who the father is? What if she doesn't tell you at all? You know, very little decor can do to actually compel the mother in those circumstances to notify the social worker and other agencies of of who the father is. But then there are concerns there whereby if for example, the maternal side of the family are told and the paternal family or not. And that could cause problems electronic can cause a rift between the families in that paternal family may later argued that if you had notified as we may have come forward, we may have been assessed and potentially the child could have been placed with us, but nobody even gave us that option. So you can see that's obviously an issue in that regard, then you're looking at the impact of the delay as you know, delays, prejudicial to child welfare. And therefore it's very important to make sure that any decision that is taken as to whether to notify the child or not uh sorry to notify the father and extended family or not is taken as swiftly as possible to minimize the delay of placing for adoption if that is the appropriate and a bed best interest plan for child. And then any of the matters that may be I need to be taken to account in looking to see why confidentiality should be maintained. So you can see These are all very significant factors. nine key factors which then need to be pulled together in helping the court in deciding them whether or not in those circumstances to notify the father and indeed extended family members in these cases. So you consider the thinking behind those decisions right. What I wanted to finish then with today is to identify this other more recent case. This was the case of a local authority in J. K. And another this 2021 decision handed jam in the family division of the high court by MR justice peel And this really looks at the Process as far as the part 19 NPR applications. So if local authorities are dealing with a case which may be less clear cut as to whether to notify the father and extended family members than as I mentioned. This is where your Part 19 route will then come into play insofar as particularly father is concerned. The facts of this case essentially where it involved a child, It was 10 months of age and the mother had decided to relinquish the baby for adoption before the child had in fact even been born. And she said that she felt that she was unable to meet the Charles needs. She didn't want the father or any of the members of the wider family. Both pattern and the maternal side to be titled Charles birth or indeed of the adoption proceedings or therefore to be concerns potential carers. So she simply wished to give the baby up for adoption and for none of the family members than to be notified at all in a circumstance and no before the father to be informed of this fact in the circumstances. Now the local authorities and lodged two applications firstly to lodge an application for an order under the family procedure was part 19. Andrew 14.21 of the FPR which is basically an order they were seeking which was seeking a decision not to Disclose the child's existence to the father and proposed adoption proceedings or at all? So that's the part 19 route that they went down. Do you talk to not inform the child's father of the child's existence. And secondly, they lodged an application filed. Inherent jurisdiction for High Court. So involved in the inherent jurisdiction su section 100. Subsection three of the Children activation nine, whereby they are first and foremost seeking to involved in Hammond jurisdiction. And secondly, to seek the order not to they're not too therefore disclose the child's existence to in this case, the maternal grandparents does two separate applications that the local authority lodged in the circumstances and this is where there had been some change to the position with the family procedurals insofar, as which caught one should be lodging these applications on. And this is something that was referred to in the case of a B and C. That 2020 decisions I've just mentioned, I believe in judgment by Lord Justice Peter Jackson, whereby his lordship did say That in relation to the putative father, the application should be under part 19 of the FBR. Unless there are issues of a significant harm in which case one should really be looking at commencing cape ceilings Under Section 31 of the Children Act or Placement Order Under section 21 of the And that would be lodged under the allocation and a guidance and distribution of business. So that would be lodged ordinarily in the family court Under the part four proceedings of the Children and but his lordship did say that his lordship did say that that would suggest an equivalent application having jurisdiction coming made with local authorities. DATs about notification of a close relative. So that was what his lordship emphasized. But there were some changes that came in to the family procedure rules whereby In a BTC back in January 2020, rule 14.1 provided that didn't have any jurisdiction and fathers want responsibility provisions. Was that where no proceedings had started then? Indeed, it's the adoption agency or the local authority who can ask the High Court for directions on whether to give father without pr notice. So, that was a position as of January 2020 in the case of a B and C. So that was the position there. But actually, on the six April 2020, there was this amendment that came in as a result of the These provisions, a statutory instrument of 2020, uh Number 1 35 Whereby Route 14.21 was amended. So it's to vary the heading. So, the matter of fact, was the applications of this nature whether to notify the father or not, could in fact they're on be made to the family court rather than to a family division of the High Court ified inherent jurisdiction. So therefore, it became the case that as far as six or 8 2020 whether to notify father or not, you could actually put that application to the family court as opposed to seeking to involved inherent jurisdiction of the High Court. So that became possible. And therefore, his lordship did say that on the facts of this case, what do we then do in that situation? So if the application do not notify father or indeed to notify him, was to family court. What about non modification? two close relatives cannot be made to the family court. Or does that have to be inherent jurisdiction. And his lordship did say that there is no room specifically designed for such persons. And therefore, the Dichter comment by Lord Justice. Peter Jackson continued to hold good in that to not notify the wider family is such an application would need to be made to the inherent jurisdiction route provided them, and therefore, his lordship did say that as it stood. As of. Certainly, when this judgments handed down In early 2021, as it stood, therefore, needs to be applications made to two different courts like you to not notify father, that can be made to the family court. Do not notify extended family members. That would need to be made five, The family division of the high court via inherent jurisdiction. And therefore, one of the things that his lordship did say is that the rules committee may wish to look at Rule 14.21, to see whether it is possible to actually bring these bowls together before the family courts. Of course, both could be dealt with by the same judge. The same hearing. In that circumstance is particularly bearing in mind that delays prejudicial to a child's welfare and therefore in matters related to this, of course, time is of the essence. You can see the thinking behind that and the court dictate of either on what was known under particular facts of this case. His lordship did say that the evidence of the father was limited, but there was insufficient information on the facts here to say that he should be excluded from not being notified and therefore excluded potentially as being a potential care for the child concerns that the mother ways were not as grave to entirely remove father from the equation. And as I mentioned earlier, the local authority of adoption agency cannot just going to say so of the mother. In the circumstances I hear the father was to be notified. Similar leads as far as the extended family members were concerned, there was insufficient information here to suggest and justify that neither the matter and on order paternal grandparents should be easily from consideration at this stage as potential carers. So therefore they too needed to be notified in the circumstances. The relationship dr mother had with her parents, particular mother. Her mother didn't appear to be broken down irretrievably relationship between the mother and the father was was that casual it lasted for some 3.5 years. So it was substantially had been substantially in that regard and therefore the facts. The court took the view that the applications would be refused and then therefore the question would then be as to how best to inform the father in the extended family. And that would need to be very sensitively. Of course, dealt with in the circumstances given what was known about mother's concerns in that regard. Right. That brings this session to an end. So you can see I spent a fair bit of time with you in this session developing the question as to whether to notify the files and extended family and therefore hope that both this session and the previous one have been helpful for you pull together this area of a but particularly Children cases. Can I thank you very much indeed for listening. I hope that's been a useful session for you and I'll speak to you next time. Thank you very much. Bye for now.
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