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Re A (Relinquished baby: Risk of domestic abuse) [2018] EWHC 1981 (Fam): analysis by Simon Wilkinson and Charlotte Wilce, barristers in the case

Re A concerns a 7 month old boy whose mother sought for him to be adopted but for the adoption to carried out without notifying the putative father or extended family.

In a recent case before Cobb J, Charlotte Wilce represented the Local Authority and Simon Wilkinson represented the child. The case involved an application under the inherent jurisdiction of the High Court made by the Local Authority who sought to place a child which had been relinquished by its mother at birth for adoption.

The Authority sought declarations that it was in the child’s best interests not to inform either the putative father and/or members of the extended paternal and maternal family of the child’s existence in circumstances where the evidence was clear that to do so (and thereby to give the father notice of the birth either directly or indirectly) would leave to a very high risk of significant domestic abuse. The father was described as having no regard for court orders and had a history of abusing both this mother and former partners.

Summarising the recent jurisdiction on such applications, Cobb J set out (at para 19 onwards) the “cardinal principles” as follows:

  1. Each case is fact-sensitive (Re RA at [31]); 
  2. The outcome contended for here is "exceptional" (A Local Authority v the mother at [1]-[7])
  3. The paramount consideration is the welfare of A; section 1(2) Adoption and Children Act 2002 ('ACA 2002') 
  4. The court must have regard to the welfare checklist in section 1(4) ACA 2002;
  5. It is a further requirement of statute (section 1(4)(f)(iii) ACA 2002) that the court has regard to the wishes and feelings of the child's relatives;
  6. Respect can and indeed must be afforded to the mother's wish for a confidential and discreet arrangement for the adoption of her child, although the mother's wishes must be critically examined and not just accepted at face value; overall the mother's wishes carry "significant weight" albeit that they are not decisive (Re JL and AO at [47], [48] and [50], and see also Re RA at [43(vi)]);
  7. Article 8 rights are engaged in this decision; however, in a case where a natural parent wishes to relinquish a baby, the degree of interference with the Article 8 rights is likely to be less than where the parent/child relationship is to be severed against the will of the parent (Re TJ at [26]];
  8. Adoption of any kind still represents a significant interference with family life, and can only be ordered by the court if it is necessary and proportionate (Re RA at [32]);
  9. A high level of justification is still required before the court can sanction adoption as the outcome, and a thorough 'analysis' of the options is necessary (Re JL & AO at [32]); 'analysis' is different from 'assessment' – a sufficient 'analysis' may be performed even though the natural family are unaware of the process (Re RA at [34]).  As I said in Re RA at [38]:
    "in order to weigh up all of the relevant considerations in determining a relinquished baby case it may be possible (it may in some cases be necessary) and/or proportionate to perform the analysis without full assessment of third parties, or even their knowledge of the existence of the baby. The court will consider the available information in relation to the individual child and make a judgment about whether, and if so what, further information is needed".

 

Ultimately, balancing  all of the factors in the case Cobb J found that the Local Authority (with the support of the Guardian) had made good its case, and he thus made the declarations sought.

The full judgment can be read here: http://www.bailii.org/ew/cases/EWHC/Fam/2018/1981.html

The case has also been reported in Family Law Week: http://www.familylawweek.co.uk/site.aspx?i=ed191286

 

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