The Prospective Adopters v The Mother & Anor (Rev 1)

There is no automatic requirement to join a child as a party to adoption proceedings. Joinder depends on the circumstances specified in the Family Procedure Rules 2010, or on the court’s discretionary power where special circumstances exist. Where a child is voluntarily relinquished for adoption, the child is not detained for the purposes of Article 36 of the Vienna Convention on Consular Relations 1963. The court nevertheless retains a discretion to notify foreign consular authorities. That discretion requires a holistic and fact-sensitive balance, including parental responsibility, family-life rights, the substance of relationships, the prospect of family placement, risks to the mother or others, cultural factors, confidentiality, delay and the child’s welfare. Notification was refused where it offered little benefit, created serious risks to the mother and was likely to delay a permanent placement.

The prospective adopters applied under section 46 of the Adoption and Children Act 2002 for an adoption order concerning a Romanian child born in England. The child’s Romanian mother had travelled to England to give birth and relinquish him. She consistently refused to identify or involve the father or wider family, fearing serious consequences within her Roma community.

The local authority sought directions on whether it had to notify the Romanian Central Authority, or should seek its assistance in identifying and assessing the father and relatives. The child had initially been joined, but that order was stayed because joinder and appointment of a guardian could trigger notification under Article 37 of the Vienna Convention on Consular Relations 1963. The central issues were whether notification was legally required and, if not, whether it should occur as a matter of discretion.

1. No mandatory notification under Article 36. A child voluntarily relinquished for adoption is not detained for the purposes of Article 36 of the Vienna Convention on Consular Relations 1963. Accordingly, no notification obligation arose on these facts. The reasoning in Re JL and AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam) was followed.
2. Joinder was discretionary. The child was not automatically a party to adoption proceedings. The circumstances requiring joinder under rule 14.3(1) of the Family Procedure Rules 2010 were absent. Rule 14.3(2) gave the court power to direct joinder where the child had evidence or submissions not otherwise available, or where other special circumstances existed. The Court of Appeal’s statement in Re ABC (Adoption: Notification of Fathers and Relatives) [2020] 3 WLR 35 did not create a universal requirement to join the child.
3. Discretionary notification. The court retained a discretion to notify the foreign authorities even where the Convention imposed no duty. The decision required a holistic balance of the factors identified in Re ABC (Adoption: Notification of Fathers and Relatives) [2020] 3 WLR 35, including parental responsibility, Article 8 rights, the substance of the relationships, the realistic prospect of family placement, the physical, psychological or social impact of notification, cultural and religious considerations, the availability and durability of confidential information, delay and other relevant matters.
4. Application. The father had no parental responsibility in English law and there was no established family life with the child. There was little prospect of a family placement. The mother’s fear of disclosure and the possible consequences were genuine and serious. Notification might not identify the father, but was likely to expose the mother and cause delay. The child’s existing loving placement and need for expedition reinforced the conclusion that joinder and notification would not serve his welfare.
5. The court therefore refused to join the child as a party and exercised its discretion not to notify the Romanian consular authorities or seek their assistance.