A, B And C (Adoption: Notification of Fathers And Relatives)

A decision whether to notify a putative father or relative of the birth of a child who may be adopted requires a fact-sensitive balancing exercise. The child’s welfare, prompt decision-making and the adoption welfare checklists are central considerations, but the notification decision is not itself governed by welfare paramountcy under the Children Act 1989 or the Adoption and Children Act 2002.

The decision-maker must investigate the available information critically and strike a fair balance between the mother’s privacy, the child’s interests, and the interests and rights of fathers and relatives. Confidentiality is exceptional, particularly where there is parental responsibility or family life, but exceptionality is not a separate test. Notification is justified unless the circumstances show that maintaining confidentiality is the proportionate outcome.

Three appeals concerned babies whose mothers had concealed their pregnancies and sought to prevent notification of the births to fathers and wider family members. In Case A, the Family Court had permitted a proposed consensual adoption to proceed without notification. In Cases B and C, it had refused the mothers’ applications to prevent notification to, respectively, maternal grandparents and the child’s father.

The appeals raised the common question whether a local authority or court should notify a father or relative before decisions are made and implemented for a child whose future may include adoption. The court also resolved whether welfare paramountcy under the Children Act 1989 and the Adoption and Children Act 2002 directly governs that prior notification decision.

1. Case A appeal allowed; Cases B and C appeals dismissed. The court set aside the order permitting A’s adoption planning to proceed without notification. The father was to be told of A’s existence, preferably by the mother, after which the parties were to consider whether wider-family notification was appropriate. The orders requiring notification in B and C were upheld.

2. A notification decision is a decision about who should be consulted concerning upbringing or adoption. It is not itself a decision relating to upbringing under the Children Act 1989, nor a decision relating to adoption under the Adoption and Children Act 2002. Accordingly, welfare is important but not paramount. The correct approach is to strike a fair balance between the competing rights and interests.

3. The mother’s Article 8 right to private life is engaged by confidential relinquishment. It may nevertheless be overridden where necessary to protect the interests of the child, father or relatives. The decision-maker must investigate the facts as fully as confidentiality permits and must critically examine, rather than simply accept, the account of the person seeking secrecy.

4. The relevant considerations include parental responsibility; existing or potential Article 8 family life; the substance of relationships; the realistic prospect of family care; the physical, psychological and social consequences of disclosure; cultural or religious matters; the availability and likely durability of confidential information; delay; and any other relevant circumstances. The list is not closed.

5. Confidentiality is exceptional, and highly exceptional where a father has parental responsibility or family life. That description reflects the usual weight of the competing considerations; it is not a free-standing legal test. In A, the evidence did not objectively justify discounting the father or family as potential carers, and the mother’s anticipated difficulties did not outweigh the child’s and father’s interests. In B and C, the judges were entitled to conclude that potential family care and the fathers’ or relatives’ interests justified normal enquiries despite the mothers’ serious concerns.

6. Local authorities must act urgently but thoroughly. In any case that is not clear-cut, they should promptly seek legal advice and normally apply for directions under Part 19 of the Family Procedure Rules 2010 concerning a putative father. The court should give such applications urgent, reasoned consideration.

• Court of Appeal (Civil Division) — allowed the child’s appeal in Case A and remade the notification decision; dismissed the mothers’ appeals in Cases B and C: [2020] EWCA Civ 41.
• Family Court — HHJ Marston had directed non-notification in Case A; HHJ Willans and HHJ Carr QC had refused applications to prevent notification in Cases B and C respectively.