Birmingham City Council v S & Ors

Where a child may otherwise be placed for adoption, the court must balance the child’s right to grow up within the natural family against the Article 8 rights of a parent and relatives to confidentiality and family life. There is no absolute duty to inform or consult extended family members. However, withholding information from a significant relative who may be able to care for the child requires cogent and compelling justification. Adoption is a last resort and the court must consider realistic opportunities for family placement. The assessment is fact-sensitive, including the likelihood of rejection, the risk that secrecy will fail, the child’s timetable, and the consequences of losing a family placement opportunity.

The local authority brought care proceedings concerning an infant who was in foster care following unsuccessful parenting assessments. The father applied to prevent the local authority, the guardian and the mother from informing his parents and wider paternal family that he was the child’s father or that the child existed. He feared rejection by his family and serious consequences within the family and religious community.

The application arose while a further assessment of the mother was being arranged. If she could not care for the child, the local authority might seek adoption, making assessment of paternal relatives potentially material. The central issues were whether the court had jurisdiction to restrict disclosure, how the competing Article 8 rights should be balanced, and whether the paternal family should be given the opportunity to be assessed as carers.

1. Application dismissed. The court had jurisdiction to grant or refuse the father’s application. The issue was fact-sensitive and was not determined solely by the existence of Article 8 rights.
2. The father and child had family life within Article 8(1). The relationship had been close, the father had maintained regular and developing contact, and he wished to support the child and remain involved in her life.
3. The child had rights under English common law, the Children Act 1989 and Article 8 to be brought up within her own family unless there was good reason otherwise. The father also had Article 8 rights in respect of the privacy of his family life, including information that he had fathered a child. The paternal grandparents had an interest in being able to put themselves forward as carers.
4. The statutory duties of the local authority and guardian did not impose an absolute duty to inform or consult extended family members. Their exercise remained subject to the child’s welfare and the competing Convention rights.
5. On the evidence, it was more likely than not that someone in the paternal family would wish to be considered as a potential carer. The proximity of the families created a serious risk that the grandparents would discover the truth accidentally. That would deprive them and the child of a meaningful opportunity to establish a family placement.
6. The child’s rights prevailed on the facts. The feared rejection was possible but unlikely, and the loss of the opportunity for family care would be more damaging than the risk of rejection. Withholding information from a significant relative who might otherwise care for a child destined for adoption could be justified only by cogent and compelling grounds, which were absent.
7. The court declined to make the wider order preventing the mother from discussing the father’s identity with family, friends or professionals. Such an order would be disproportionate and its practical scope was doubtful. The father was given a limited opportunity to inform his parents before the local authority and guardian exercised their duties.