A Local Authority v JK and W (Adoption Notification to father) (Rev 2)

Applications to withhold a child’s birth and proposed adoption from a putative father and wider family require urgent and thorough investigation, followed by a fair balance of all relevant interests. The child’s welfare is important but is not the paramount consideration, and confidentiality is exceptional rather than an independent test. A mother’s account cannot automatically be accepted where it would exclude realistic family alternatives. Notification should ordinarily be pursued within weeks of birth, absent good reason for delay. Adoption should not proceed until realistic alternatives, including family placement or a continuing role for the father and relatives, have been properly explored.

A local authority sought directions under Part 19 and rule 14.21 of the Family Procedure Rules 2010 concerning notification of W’s putative father, and an order under the inherent jurisdiction concerning the maternal grandparents. W’s mother had relinquished him for adoption and wished his birth and the proceedings to remain confidential. The Guardian opposed the applications. The applications were issued approximately seven months after W’s birth, after the mother had previously been assured that no such application would be made. The central issues were whether notification should be withheld, whether the father and wider family should be excluded from consideration as carers or participants in W’s life, and how the interests under Article 8 should be balanced.

1. Jurisdiction and procedure. Applications concerning a father without parental responsibility should ordinarily be made to the Family Court under Part 19 and rule 14.21. Applications concerning close relatives remain matters for the inherent jurisdiction. The two types of application are closely connected and should ordinarily be heard together by the same judge.
2. Governing approach. The principles in Cases A, B and C [2020] EWCA Civ 41 were followed. The decision requires a careful investigation of the facts and a fair balance between the mother’s confidentiality, the child’s lifelong interests, the father’s interests, and those of wider family members. The child’s welfare is an important factor but is not the paramount consideration. The relevant factors include parental responsibility, Article 8 rights, the substance of relationships, the realistic possibility of family placement, the impact of notification, cultural and religious factors, the availability and durability of confidentiality, delay, and any other relevant matter.
3. Application to W. The seven-month delay was unacceptable and had distorted the decision-making process. The evidence did not justify summarily excluding the father or the grandparents. The father’s relationship with the mother was casual but extended over about three and a half years, and the evidence did not exclude a possible caring role or another meaningful role in W’s life. The evidence concerning the grandparents was likewise insufficient to exclude them without further consideration.
4. The mother’s distress was significant, but the evidence did not establish a substantial mental health vulnerability or a likely disastrous consequence from notification. That factor therefore did not outweigh the interests favouring investigation and notification. The possibility that prospective adopters might withdraw was important but did not justify withholding notification.
5. Applying the principle that adoption is a last resort, as stated in Re B (Care Proceedings: Appeal) [2013] UKSC 33, the court held that adoption could not properly proceed before realistic alternatives had been explored. The applications were dismissed. The local authority was required to consider how best to identify and notify the father and notify the maternal grandparents, carefully and sensitively.
6. Absent good reason to the contrary, a non-notification application should ordinarily be brought within weeks of birth rather than months. Local authorities should explain the adoption and non-notification process carefully and should not give false assurances.