M v F & Ors

In family and adoption proceedings, the starting point is that a parent with a substantial relationship with the other parent, especially a spouse living in the family, should be told of the child and allowed to participate. Non-disclosure is permissible only in exceptional circumstances supported by strong countervailing factors. The required degree of exceptionality is very high. The exception is not confined to significant physical risk.

Future harm must be assessed by identifying its nature and gravity and evaluating the risk against that harm. No minimum probability threshold applies. Serious harm may justify action on a smaller risk, while lesser harm requires a higher risk. Unsupported speculation about family upset will not suffice.

M, who was married to and living with F, appealed after Mostyn J refused declarations intended to keep F ignorant of their legitimate child’s birth and to prevent his participation in care and adoption arrangements. M relied on F’s mental-health difficulties and alleged volatility. The lower court found no objective expert support for the feared consequences and held that the high threshold for non-disclosure was not met.

The appeal challenged the suggestion that only significant physical risk could justify withholding information and the use of a balance-of-probabilities approach to future harm. The central issues were the scope of the exceptional non-disclosure jurisdiction and the proper assessment of future risk.

Appeal dismissed. Permission to appeal was granted. Thorpe LJ delivered the principal judgment, with which Longmore LJ and Black LJ agreed.

1. The starting point was that a parent with a substantial relationship with the other parent should know of the child’s existence and participate in care or adoption proceedings. Departure from that principle requires exceptional circumstances and strong countervailing factors. The required threshold is particularly high where the parents are married and living together, because the father’s family-life and fair-trial rights are strongly engaged. This approach was consistent with Re H; Re G [2001] 1 FLR 646, Re D [1996] AC 593 and Re X (Adoption: Confidential Procedure) [2002] EWCA Civ 828.
2. The court rejected any suggestion that significant physical risk was the only route to exceptionality. Harm and risk arise in many forms, and family proceedings should not be placed in a straightjacket by prescribing a single qualifying circumstance. The court explained that Re X (Care: Notice of Proceedings) [1996] 1 FLR 186 had not been decided solely on the basis of physical risk.
3. The court also clarified that future harm should not be tested by a minimum balance-of-probabilities requirement. The court should identify the nature and extent of the harm contemplated and assess the risk in light of its gravity. The greater the harm, the smaller the risk may suffice; lesser harm requires a higher risk. The real-possibility approach discussed in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 was useful by analogy. These observations did not affect the result because the application was bound to fail on the evidence.
4. The evidence consisted principally of M’s and her daughter’s accounts. There was no medical or other objective expert evidence supporting the predicted consequences. At most, disclosure might cause upset and confusion, while the more serious consequences were pure supposition. The high threshold for withholding F’s knowledge of the child was therefore not met.
5. As a procedural matter, where an Advocate to the Court has participated at first instance, the judge giving directions for an oral hearing or appeal should consider the Advocate’s future involvement. The Advocate should seek directions if necessary, and an appellant should notify the Attorney General when filing the notice of appeal.

1. Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was dismissed. [2011] EWCA Civ 273.
2. High Court: Mostyn J, on 20 September 2010, refused declarations intended to prevent F being informed of the child’s existence and excluded from related care and adoption proceedings. No citation for that decision was stated.