Does A Birth Father Have Any Rights - Adotion

Judgment November 23, 2007

There was no duty on a local authority to make inquiries of a child’s extended family or father about the possibility of their providing long-term care where mother wished to place the child for adoption.

The Court of Appeal so held in a reserved judgment in allowing an appeal brought by the mother against the decision of a county court judge on September 28, 2007 when he held that the local authority was under such a duty.

Once the judge had made his order, there was a misunderstanding as a result of which the local authority wrote to the mother’s parents seeking an interview but not giving the reason.
The parents discovered that the mother had given birth and contacted the local authority to offer to assist in resolving the situation. They had not, however, taken part in the proceedings.
Reporting restrictions were placed by the court preventing the publication of any infomation which could lead to the identity or location of the parties.

LADY JUSTICE ARDEN said that the mother wished to place her child for adoption at birth and did not want the local authority to make inquiries to see if any of the child’s birth family would be suitable carers. The mother did not tell her family or the father about her pregnancy or the birth. The liaison with the father was a one-night stand.

Before the Adoption and Children Act 2002 Act, the courts had made it clear that, while in general terms the views of a father of a newborn child should be obtained before the child was placed for adoption, they did not require the consent of the father to be obtained where the mother and father had only had a fleeting relationship. The question was whether the 2002 Act had changed that position, as the judge held in the court below.

The question in the present case was one of statutory interpretation. It was necessary to go back to section 1 and particularly subsection 2 which made the child’s welfare the paramount consideration. The result was that section 1 was child-centred, and not mother-centred.
In this particular case, section 1(4)(c) and 1(4)(f) were particularly important. They were not in the Adoption Act 1976 and were therefore new. Subsection (4)(c) explicated the extended meaning of the child’s welfare, and required the court to look at the likely effect on the child throughout the child’s life of having ceased to be a member of the original family and having become a member of his or her adoptive family.

When a decision needed to be made about the long-term care of a child, whom the mother wished to be adopted, there was no duty of an absolute kind to make inquiries. There was only a duty to make inquiries, if it was in the interests of the child to do so.

The immediate question with which the guardian and the local authority were concerned was who would look after the child on a long-term basis. The inquiries had to be focused on that result.

The court was a public authority for the purpose of section 6 of the Human Rights Act 1998 and it would be unlawful for it to act in a manner which was incompatible with the rights conferred by the European Convention on Human Rights.

In the present case, the father did not have a right to respect for his family life with the child because he had no family life with the child. He had never lived with the mother or expressed any commitment to the child. He could not have done so because he did not know of the child’s existence.

It was not a violation of a Convention right to deprive him of the possibility of obtaining a right to respect for family life with the child. The father therefore had no Convention right and accordingly it was unnecessary to ask whether article 8.2 applied.

The grandparents did have such a right, but they would be able to obtain the information by making their own application under the Children Act 1989.
The local authority submitted that the ordinary rule should be that the near family and father should be identified and informed unless the court was satisfied that such inquiries would be inappropriate.

Her Ladyship did not consider that the court should require a preference to be given as a matter of policy to the natural family of a child. Section 1 did not impose any such policy. Rather, it required the interests of the child to be considered. Lord Justice Thorpe and Lord Justice Lawrence Collins delivered concurring judgments.