Re R & S (Twins: Relinquishment: Notification)

When a mother seeks confidentiality about a child who may be adopted, the court must investigate the facts and strike a fair balance between the competing interests. The child’s welfare is important but is not paramount. Relevant considerations include parental responsibility, Article 8 rights, family relationships, the realistic possibility of a family placement, the impact of disclosure, cultural and religious factors, the durability of confidentiality, delay, and any other relevant matter. Confidentiality is exceptional, especially where parental responsibility or established family life exists, but exceptionality is not a separate test. Serious risks of ostracism, family breakdown or comparable social harm may outweigh the interests favouring notification.

A local authority applied under the inherent jurisdiction for permission not to notify the maternal and paternal relatives of twin boys about their birth or proposed adoption, and not to assess them as prospective carers. The mother wished the children to be adopted and opposed disclosure because of anticipated emotional and social consequences within her Muslim Pakistani family and community. The children’s guardian supported confidentiality. The father knew of the children’s birth, had no parental responsibility, and did not engage with the proceedings. The central issue was whether, applying the approach in Re A & Others, the balance justified withholding notification from the wider families.

Application granted. The court made the declaration sought under the inherent jurisdiction and dispensed with notification of the maternal and paternal families and further exploration of a family placement.

1. The approach in Re A & Others required the court to decide the matter for itself, even though all parties agreed. The court had to establish the facts as clearly as possible, scrutinise the mother’s account with care, and strike a fair balance between the competing interests. The children’s welfare was important but was not paramount.
2. The father had no parental responsibility and was already aware of the birth. The evidence showed that he had voluntarily chosen not to participate in the children’s lives or the proceedings. The paternal relatives had no established family life with the mother or children.
3. A family placement was not a realistic alternative. The mother’s parents and brother and his fiancée would not wish to care for the children, and the mother’s sister was herself a child and could not be considered as a prospective adopter.
4. The fifth and sixth factors in Re A carried particular weight. Although there was no accepted risk of physical violence, disclosure was likely to cause profound social and emotional harm, including ostracism within the family and wider community and the possible collapse of the mother’s and her brother’s forthcoming marriages. These consequences went beyond embarrassment or social unpleasantness.
5. Confidentiality was likely to endure in relation to the paternal family, but there remained a risk of accidental or later disclosure within the maternal family. Informing the paternal family would increase the risk that confidentiality would be lost.
6. The six-month delay before the final hearing was too long. Although delay would not usually predominate, in this case it supported dispensing with notification because no significant countervailing factor required disclosure.

First-instance application under the inherent jurisdiction of the High Court. No appeal or earlier judicial decision is stated in the judgment.