Notification Proceedings: Local Authority’s Unacceptable Delay

A Local Authority’s application not to disclose a child’s existence to his Father in proposed adoption proceedings was refused because of an utterly unacceptable period of delay: A Local Authority v JK (First Respondent) and W (Through his Guardian)(Second Respondent) [2021] EWHC 33 (Fam) Peel J

The Mother had relinquished the child for adoption before he was born because she did not believe she could give him the care he needed.

She did not want the Father or any member of the wider families to be told of the child’s birth or the adoption proceedings, or to be considered as possible carers.

At the date of the hearing, the child was 10 months old.

Seven months after birth the Local Authority applied for:

• An order under FPR Part 19 and rule 14.21 endorsing its decision not to disclose W’s existence to his Father in proposed adoption proceedings, or at all; and
• An order under the inherent jurisdiction endorsing its decision not to disclose his existence to the maternal grandparents.

The Mother supported the applications.  The Guardian opposed the applications.

Refusing the application, Peel J observed that the unacceptable delay of 7 months had unfortunate consequences.

Firstly, the mother believed, based on what she had been wrongly told by the Local Authority, that there was no question of the Father being identified and notified.

Secondly, the Local Authority formed the view early that adoption was the only realistic option for the child.  The passage of time simply reinforced that view.

The Local Authority did not sufficiently appreciate the importance of the notification issue, Cases A, B and C [2020] EWCA Civ 41, and the competing rights and interests of the Mother, the Father and wider families.

The limited evidence was not sufficient for the Father to be excluded on a summary basis from being a possible carer or from playing some other more limited role in the child’s life.

To proceed to adoption (the “last resort”/”where nothing else will do” as was described in Re B (Care Proceedings:Appeal) [2013] UKSC 33)) without (a) conducting a thorough inquiry into his circumstances and (b) permitting him to advance a case as to how he might make a meaningful contribution in the child’s life and (c) permitting him to put forward options which fell short of adoption, would be disproportionate and unjust to the Father.

Neither did the evidence justify either the maternal or paternal grandparents being summarily excluded from consideration at that stage.

The Mother’s relationship with her parents did not appear to be irredeemably broken down.

The relationship between Mother and Father, although casual, lasted for three-and-a-half years.

There was the possibility that the prospective adoptive parents might elect to withdraw but had not done so yet.  Whilst an important consideration, that did not outweigh the considerations pointing the other way.

The impact on the Mother, while distressing and unsettling, was unlikely to be disastrous, and it was to be hoped and expected that proper support would be offered by the Local Authority to address any issues.

Determination in favour of the Local Authority would inevitably lead to a total severance of the child’s relationship with his birth families.

Article 8 rights of the Mother and child were clearly engaged.

The Father’s casual relationship with the Mother and lack of parental responsibility militated against a conclusion that he had formal Article 8 rights, but he had an interest which must be weighed in the balance.

Weighing up the competing considerations, the court held that the Father should be identified and notified, and the wider families considered.

Although adoption may yet be the outcome, it must be reached after all realistic options were explored.

In Cases A, B and C the Court of Appeal emphasised the urgency required in making a Part 19/Rule 14.21 application.

In Case A the application was made four months after birth and was described by the Court of Appeal as “belated”.  The delay in the present case was utterly unacceptable.

Had the application been made promptly, the various difficulties explored in the current hearing would have been avoided.

The Local Authority appeared not to have considered properly or at all the legal requirements in a case of this nature or, if it did, inexplicably did the exact opposite.

Piling error upon error, the Local Authority assured the Mother that it did not need to make a non-notification application, only to do so several months later.

The exhortation in Cases A, B and C not to give a Mother false assurances should be scrupulously followed.

Delay in notification proceedings usually ran contrary to the interests of the child.  Such delay was usually avoidable and unnecessary.