The London Borough of Hounslow v El & Ors (Rev 1)

In an adoption case involving a married mother who sought confidentiality from her husband, the court may dispense with notification and consent requirements where the legal presumption that the husband is the father has been rebutted. The decision requires a careful investigation of the available evidence and a holistic fair balance between the mother’s privacy, the child’s welfare, the interests of any legal or possible father, and wider family interests. Exceptionality is a description of the outcome of that balancing exercise, not a separate test or shortcut. Where the husband is neither the biological father nor a person with parental responsibility, and no realistic family placement exists, the exceptional circumstances may justify proceeding with adoption without notifying him.

The local authority applied under Part 19 of the Family Procedure Rules 2010 and rule 14.21 for orders dispensing with notification to, and consent from, the mother’s husband in relation to the proposed adoption of her five-month-old twins. The husband lived in Poland, was unaware of the children, and was the presumed legal father by virtue of the marriage, although he was not named on their birth certificates. The mother said that the twins were conceived during a one-night encounter with an unidentified man and that disclosure would jeopardise her marriage and relationships with her four older children.

The issue was whether the presumption of legitimacy had been rebutted, whether the husband had parental responsibility, and whether the circumstances justified withholding notification and consent.

1. Presumption and parental responsibility. The mother’s written and oral evidence was accepted. On the civil standard, it rebutted the presumption that the children were the legitimate issue of her husband under section 26 of the Family Law Reform Act 1987. The husband was therefore not their biological or natural father and did not have parental responsibility under section 2(1) of the Children Act 1989.
2. Applicable approach. The court treated A, B and C (Adoption: Notification of Fathers and Relatives) as the leading authority. Decisions about withholding notification require urgency, thorough investigation and a fair balance between the competing interests. The child’s welfare is important but is not paramount in the notification decision. Relevant matters include parental responsibility, Article 8 rights, the substance of the relationships, the prospects of a family placement, the impact of notification, cultural and religious considerations, the durability of confidentiality and delay. The list is not closed.
3. Exceptionality. Maintaining confidentiality is exceptional, particularly where parental responsibility or family life exists. Exceptionality is not an independent test or shortcut. It reflects the outcome of the required fact-sensitive balancing exercise. Here, the absence of biological paternity, the lack of any realistic family placement, the mother’s genuine fear of serious disruption to her family, and the absence of any identifiable biological father supported confidentiality.
4. The local authority had taken all practicable steps to identify the biological father. Notification of the husband was unlikely to benefit the children and risked grave and lasting consequences for the mother and her other children. The application was therefore granted.