IN THE HIGH COURT OF JUSTICE
ON APPEAL FROM
The Honourable Mr Justice Mostyn
FD10P001660
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE RIGHT HONOURABLE LORD JUSTICE THORPE
THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
and
THE RIGHT HONOURABLE LADY JUSTICE BLACK
Between :
M | Appellant |
- and - | |
F | 1 st Respondent |
-and- H (A Local Authority) -and- BA (By his Guardian) | 2 nd Respondent 3 rd Respondent |
Richard Anelay QC and Philip Squire (instructed by Wimbledon Solicitors) for the Appellant
Caroline Smith (instructed by the Local Authority) for the 2nd Respondent
David Boyd (instructed by CAFCAS) for the 3rd Respondent
Simon Murray (instructed by the Attorney General) Advocate for the Court
Hearing dates: Friday 17th December 2010
Judgment
LORD JUSTICE THORPE:
Introduction
This is the appeal of the mother (hereinafter “M”) against the judgment of Mostyn J dated 20th September 2010 refusing the mother a wide ranging series of declarations, the object of which was to deny the father (hereinafter “F”) all knowledge of the birth and subsequent development of his legitimate child (hereinafter “BA”) born on 23rd July 2010.
On 13th October the mother filed her Appellant’s Notice and on 28th October My Lady, Black LJ, directed that the permission application should be adjourned to an oral hearing with appeal to follow if permission granted. She effectively granted a stay by directing that the Local Authority should not inform F of the existence of BA or of the appeal pending the hearing. My Lady identified the point for determination, namely whether the judge misdirected himself that “nothing less than a significant physical risk” would justify withholding knowledge of the birth of BA from F.
Clearly, My Lady was right to identify that issue as suitable for determination by the full court. However, in my judgment, the outcome of this appeal is not dependant on the resolution of that issue. On the facts as the judge found them M had no realistic prospects of succeeding in her application for declarations. Mostyn J was plainly right to dismiss her application. In seeking to reverse his decision, Mr Richard Anelay QC with Mr Squire, has no realistic prospect of success.
The History
I cannot do better than adopt the summary written by Mostyn J. In paragraphs 7 to 20 he set out the background succinctly but comprehensively:
“7. F is 49. M is 42. Both parties are of Sikh origin and lived in Afghanistan. They married in March 1986. When in Afghanistan they had three children, now all of age: A daughter SP now aged 23, a son SS now aged 20 and a daughter MK now aged 19. SP, who swore an affidavit and gave oral evidence, is now married and has a child. SS and MK live with M and F. The daughters know of the existence of BA; the son SS does not, and it is not proposed ever to tell him.
8. According to M’s unchallenged evidence about 4 years after the marriage F’s sister’s husband was murdered by the Taliban, actually dying in F’s arms. The Taliban also killed other family members including F’s brother’s wife. F himself was kidnapped and beaten up by the Taliban. Since then F has suffered from mental health problems.
9. In 1998 the family came here and was, on account of their persecution, granted asylum. F has been under constant psychiatric care since, although it is not suggested that he is incapacitated within the meaning given by the Mental Capacity Act 2005. A letter from West London Mental Health NHS dated 19 January 2010 states that F suffers from Severe Depression with Psychotic Symptoms and Post Traumatic Stress Disorder. He suffers from nightmares and terrifying flashbacks of the horrible incidents. He hears the voices of dead family members asking for help.
10. In her affidavit M describes F’s unpredictable and frightening behaviour that results from his mental condition. She describes an incident of domestic violence about three years ago when F tried to hit M; the police were called and F was arrested. On other occasions F has threatened to kill himself with a knife. He has tried to strangle M during the night.
11. The police record reveals that in April 2008 MK had to call the police as F was being very threatening and abusive to M. In July 2008 F was arrested for being drunk and disorderly. In August 2008 F, while drunk, slapped MK; the police were called.
12. Obviously life with F must be very challenging. His mental condition means that he is unpredictable and volatile. That said there is no proposal that the family should split up. The marriage continues to function as well as it can. This involves M and F having normal marital intercourse.
13. As a result of one such act of intercourse in October or November 2009 M, then aged 41, fell pregnant. Her evidence to that effect was not challenged and having seen her in the witness box I judge it very improbable that she would have had an adulterous affair with a third party.
14. According to her affidavit she did not realise that she was pregnant at the time. She felt ill, had stomach pains and was vomiting. Her GP told her that it was either acidity or a hernia. She was given medication and told to take exercise. Later the GP told her that it could be the menopause.
15. Although it seems incredible, M did not become aware that she was pregnant until the GP sent her for an ultrasound in May 2010. This aspect of her evidence was not challenged, however surprising it may sound. By then it was too late for an abortion. M told only her daughters. Rightly or wrongly, the decision was made not to tell F or SS.
16. M and her daughters decided that the baby should be given up for adoption. The Local Authority was contacted. A social worker told them about the procedure. M explained that ‘my husband should not be told about the baby due to his mental health’. In June 2009 M was told by a social worker that F would need to be told about the baby.
17. On 23 July 2010 BA was born. On the unchallenged evidence he is F’s son. There is also the presumption of legitimacy in play. By virtue of the child having been born to married parents F is vested with parental responsibility.
18. On 26 July 2010 M was told again that F would have to be informed and his consent obtained for an adoption.
19. On the day of the birth BA was made a ward of court. Three days later the wardship was discharged and an interim care order made. BA was placed in foster care. There have been a number of review hearings leading to this hearing where the substantive relief sought will be adjudicated. Among the directions was an order that psychiatric evidence be obtained as to F’s likely reaction on learning of these events. On 31 August 2010 an order was made for the appointment of an Advocate to the Court.
20. By virtue of the interim care order the Local Authority shares parental responsibility with the parents. BA’s birth needs to be registered soon. M has been asked to suggest a name for him and to register his birth. She has declined to do so. The Local Authority will have to do this.”
Mostyn J then surveyed the evidence in support of the application. Again, I would like to cite his judgment:
“21. M and SP made affidavits and gave oral evidence. There is a s47 report from the Local Authority dated 9 August 2010. There is a report from a consultant psychiatrist, Dr Ghosh, dated 18 August 2010. This was a desk-top exercise although F’s medical records were to hand.
22. I deal first with Dr Ghosh’s report. It was very guarded. He stated that it was possible that were F told ‘there may be a subsequent deterioration in his mental health’. He was not able to assess what F’s likely reaction would be were he to be told. He could not comment on whether F had the capacity to exercise parental responsibility.
23. The s47 report gave details of the police records mentioned above. It also recorded that at 32 weeks’ gestation M had been treated for syphilis. While this raises obvious questions the matter was not explored in evidence and no serious reliance was placed on it. The report records SP saying on 23 June 2010 that it was a terrible thing for M, a grandmother, to be pregnant, and that their community would ostracise them if they knew about the pregnancy. Again, this aspect, while potentially relevant, was not explored in the evidence and no reliance has been placed on it.
24. The Affidavit evidence of M is summarised above in the narrative section of this judgment. SP filed a short confirmatory affidavit. In her oral evidence, given through a Punjabi speaking translator, M stated that F was not able to care for himself. He had hit her. She feared he would mistreat the child. She stated in chief:
‘He doesn’t know what he could do. If he were told he would not take it very well.’
Under cross-examination by the advocate to the court she stated:
‘It is not fair for him, and it is not fair for the child. I just want that he shouldn’t know about the child. I want no problems,’
In her evidence SP stated:
‘If he were told now he would take his anger out on my mother. He would probably attack her, or me. Or he might be quiet and would react later on. He would be fine, maybe.’”
Mostyn J then reviewed the relevant authorities, five in number including, in this court, Re H, Re G [2001] 1 FLR 646 and Re AB [2004] 1 FLR 527. Next he stated his conclusions on the law thus:
“40. I believe that a distinction is to be drawn between those cases where the relationship with the putative father was fleeting involving no living together or family life; and those where the relationship is well established. In the latter case the father has a family life with the mother (were he to know) an expectation of family life with the child. Re AB is a hybrid case. The relationship between the mother and the putative father was likely the result of an adulterous affair while she was in a long established marriage with her husband: that would put the case into the first category. However, the husband was at least a candidate for paternity: that would put the case into the second category.
41. I do not decide or specify the level of exceptionality needed for the first category. This case is very squarely in the second category. The parties are married and living together. A full family life exists. M positively asserts that F is the father of BA. The presumption of legitimacy applies.
42. On these basic facts the Art 8 right to respect to family life applies very strongly indeed. Equally forceful is the Art 6 right to a fair trial. The right of F to participate in the legal process that has the object of granting his son a new set of parents could hardly be set more high.
43. In such circumstances I am clear that the language used in the cases I have cited is not over-stated at all. A very high degree of exceptionality is required. I would suggest, in conformity with Re H, that nothing less than a significant physical risk, arising from the revelation to F, to the mother, or to children in the family, or to other people concerned in the case, must clearly be demonstrated. ”
It is, of course, paragraph 43 that Mr Anelay strongly criticises in support of his appeal.
Finally, Mostyn J stated his conclusion on the facts thus:
“44. There is no medical or other expert objective evidence that supports M’s case. The evidence of her and SP come nowhere near satisfying the applicable test. For the purposes of this application I am prepared to accept that the revelation to F will cause a degree of upset and confusion in this family. Whilst I do not under-estimate the potential difficulties, I am hopeful that they can be mitigated by the revelation being effected and thereafter managed in a calm and culturally sensitive way by professionals as Thorpe LJ suggested in para 19 of Re AB. Whether the revelation will lead to the consequences predicted by M and SP is pure supposition: the evidence does not lead me to conclude that it is more likely than not that these consequences will eventuate. Even if I were to find that the likelihood of occurrence was more probable than not, I am not satisfied that the harm in question is significant enough to justify the wholesale abrogation of F’s fundamental rights.
45. To grant the declarations sought would be to endorse and formalise a great lie. The family would live in a tangled web of deceit with the female members knowing all about this episode and pretending it never happened, while the male members were oblivious to it. It would have to be a very strong case before the court endorsed dishonesty of this type and scale. In almost every case truth is better than falsehood.
46. There is a further reason why to grant the relief sought would be problematic. By s47(2)(a) and s52(6) Adoption and Children Act 2002 the consent of F, as a parent with parental responsibility, is needed before an adoption order can be made. By s47(2)(c) and s52(1) the court can dispense with that consent if the welfare of the child requires it. I find it hard to see how the consent could reasonably be dispensed with if it has never actually been sought. That point aside, it is to be noted that the only ground whereby consent can be disposed is the welfare of BA. Why should concealment of his existence to his father be in his interests? After all, the plan is that he is going to be placed in a closed adoption and will know nothing of his parents until aged 18 at the earliest. Ms. More O’Ferrall argues that because s1(4)(c) refers to the likely effect on BA throughout his life of the making of an adoption order then it may well be very disturbing for BA on reaching age 18 to discover (were he to take steps to find out about his origins) that the revelation of his existence had caused chaos in his birth family. Maybe. But the argument cuts both ways. He might be equally upset to find out that his mother and sisters, supported by me, had in a calculated way withheld knowledge of his existence from his father and brother. I am not persuaded by this welfare argument at all. I find it hard, therefore, to envisage an adoption process ever legitimately proceeding without the knowledge of, and consent being sought from, a parent with parental responsibility.”
It is from paragraph 44 that Mr Anelay derives his subsidiary criticism: in weighing the risk of future harm the judge was wrong to require risk to be established on the balance of probabilities.
Submissions
Mr Anelay and Mr Squire first submit that although the exclusion of F could only be justified by a very high degree of exceptionality the judge was wrong to state that that summit could only be achieved by the demonstration of significant physical risk. Thus Mr Anelay accepts the first two sentences of paragraph 43 but not the third.
Secondly Mr Anelay submits that the judge’s reference to balance of probabilities is erroneous. That test is only appropriate to findings of past fact. The decision of this court in Newham London Borough Council v AG [1993] 1 FLR 28, considering the assessment of risk under s31 (2), demonstrates that in the assessment of future risk, likelihood rather than probability is the language.
Finally Mr Anelay advances the surprising submission that the judge insufficiently considered F’s Article 8 rights for, if informed, the consequence would be his loss of the presently secure domesticity of his family life.
Both Miss Smith for the Local Authority and Mr Boyd for the Guardian assert their neutrality, as they did in the court below. However their skeleton arguments and oral submissions were essentially mildly supportive of the judgment below.
Mr Murray, Advocate for the Court, instructed by the Attorney General, made a very valuable contribution to the outcome of this appeal. Having emphasised that, as Advocate to the Court, he was not there to take sides but only to assist, he delivered a devastating attack on M’s appeal. He described the Mother’s application as “outrageous”. Where were F’s Article 6 rights? He was not to be regarded as a “fig leaf” for them. Given his role as Advocate to the Court he had not probed or challenged M’s evidence but confined himself to questions to assist the court. Equally the Local Authority and the Guardian ad litem had remained neutral.
Accordingly the only evidence was self-serving evidence in favour of the application, hardly tested by adversarial cross-examination.
Any contrary evidence was not before the court because there was no one to marshall it.
The expert evidence relied upon by M, namely Dr Ghosh and Dr Davis, was fatal to the Mother’s case. Neither expressed the opinion that revelation would be adverse to their patient’s equilibrium as asserted by M.
In summary, the evidence as found by the judge was so deficient as to be incapable of satisfying any test of exceptionality. Authorities in the Strasbourg jurisprudence put a very high bar on exclusion.
Overall the process throughout could only be categorised as irregular. F has no advocate to resist the appeal. Had the declarations been granted below he would have had no standing to appeal.
Throughout he has been denied his Article 6 protection.
Conclusions
I accept all Mr Murray’s submissions. As I have already indicated, in my judgment this is a hopeless appeal which should be dismissed. The factual case presented to the court lacks plausibility and profundity. What were M’s real motives for her extraordinary course of action and her determination to abandon her new born? Paragraph 23 of the judgment below records that this was simply not explored or relied upon. It is hard not to suspect that the court below was presented with only the tip of an iceberg.
I do not see that the judge’s suggestion in paragraph 43 presents any problems. The judge’s categorisation in the preceding paragraphs is useful. All he was doing was emphasising that cases in the second category will almost never succeed in justifying exclusion.
When the court formulates a test it is often helpful to illustrate the test by example but in family proceedings it is extremely dangerous to state that there is only a single path to exceptionality. To do so is to give a hostage to fortune, given the infinite variety of circumstances that challenge the definition of tests in family proceedings.
Equally, I am untroubled by the judge’s observations in paragraph 44. The critical statement is that M’s evidence of risk amounted to no more than “pure supposition”. The judge’s subsequent observation in the language of probability I would not support. When evaluating the risk of future harm there can be no minimum requirement. The court’s task is first to identify the nature and extent of the harm in contemplation. The greater the harm the smaller need be the risk. Obviously, the risk of death may be very small, whereas the risk of turbulence in family relationships would need to be much higher.
The role of the Advocate to the Court
Mr Murray informed us that, because the Advocate to the Court is not a party to the proceedings, he is not notified of an appeal in proceedings where he has participated at first instance. There is no existing practice to determine the involvement of the Advocate to the Court if an appeal results. As this case demonstrated, we would have been considerably disadvantaged had Mr Murray not appeared. Clearly, the Advocate to the Court would often have a vital contribution to make in any appeal. I would therefore suggest that belt and braces should become good practice in future. The judge giving directions for an oral hearing or an appeal should consider the role of the Advocate to the Court at the future hearing. Equally, the Advocate to the Court should seek directions as to his future role if nothing has been said by the supervising Lord Justice. Beyond that I believe that there should be an obligation on the Appellant to notify the Attorney General of the filing of the Appellant’s Notice.
Lord Justice Longmore:
I agree with Thorpe LJ that this appeal, for which I agree permission should be granted, must be dismissed. I also agree that it would be better for the court not to put itself into any straightjacket such as that suggested in para 43 of the judge's judgment, that "a significant physical risk must clearly be demonstrated". It is sufficient to say, as the judge did, that "a very high degree of exceptionality is required" and that such high degree was not demonstrated in this case.
I also agree that if the judge intended to suggest that the balance of probability was the correct test to apply to the existence of a future possibility of harm, that would be wrong. I doubt if he was intending so to suggest.
I have read my Lady's judgment in draft and agree with that also.
Lady Justice Black:
I agree that this appeal should be dismissed. In giving written directions for the listing of this matter, I observed that although it was arguable that the judge had misstated the test to be applied in determining the application before him, there remained the difficulty for M that he may have been right in saying, as he did when refusing permission to appeal, that the result was “obvious”, in which case any misstatement of the test would be immaterial. This difficulty has proved insuperable for M who has not been able to persuade us that the judge was anything other than plainly right to dismiss her application.
Nevertheless, it may be of assistance if I set out my view of the legal framework for the determination of applications such as M made to Mostyn J.
The declarations M sought were wide ranging. Her objective was to ensure that the Local Authority did not consult F about the child whilst he was looked after by them, to ensure that he was not notified of care and adoption proceedings relating to the child or joined as a party to them, and to ensure that the Local Authority did not make enquiries of family members when seeking prospective adopters. She also sought a prospective determination (also by way of declaration) that the child’s welfare required F’s consent to any adoption to be dispensed with.
The decided authorities similarly arise in the context of care and adoption. My Lord, Lord Justice Thorpe, has referred to two of those to which we were taken, namely Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646 (a decision of the then President of the Family Division, Dame Elizabeth Butler Sloss P) and Re AB (Care Proceedings: Service on Husband Ignorant of Child’s Existence) [2003] EWCA Civ 1842 (a decision of the Court of Appeal). We were also referred to Re X (Care: Notice of Proceedings) [1996] 1 FLR 186 (a decision of Stuart White J), Re C (Care: Consultation with Parents Not in Child’s Best Interests) [2005] EWHC 3390 (Fam) and Re D (Unborn Baby) [2009] EWHC 446 (Fam). Mostyn J mentions additional authorities in his judgment and there are yet more in the law reports. I will mention only one of them, the Court of Appeal authority of Re C (A Child) v XYZ County Council [2007] EWCA Civ 1206.
In their skeleton argument, Mr Anelay QC and Mr Squire for M identify the starting point as Re X. In that case, Stuart White J was required to determine whether notice of care proceedings should be served on the father of a child. The mother was an unmarried Bangladeshi girl of 17 and the father was her brother-in-law. He did not know of the birth of the child. There was evidence that if the liaison between the father and the mother became known in the community, the mother would face ostracism, the family of the father would be put under great strain and the overall effect would be catastrophic. Stuart White J decided that the father should not be given notice of the proceedings. He said,
“one can contemplate, and this, I think, is not beyond the bounds of possibility, a situation where service of particular proceedings might give rise to a real danger of very serious violence and in situations of that kind the court would, in my judgment, have a discretion under this paragraph to disapply the rule requiring service”
He held that in determining whether there should be service, he was not determining a question with respect to the upbringing of the child so the welfare of the child, whilst an important consideration, was not paramount. Having weighed up various factors, he put particular weight, in deciding against service, on the destructive effect that it would have on the child’s family if the father was served.
Re H; Re G involved two unmarried mothers who did not wish to disclose the identity of the fathers of their babies. The local authorities involved in arranging the adoption of the children sought guidance from the court as to whether the father of the child had to be joined as a respondent to the adoption proceedings (in the first case) or consulted before the child was placed for adoption (in the second case).
The President said, at paragraph 43, dealing with Article 6 and the right of the fathers to a fair trial, that there must be some qualification on the right of a party to be heard in proceedings. She went on,
“This would be likely to arise under two separate categories, namely, a policy decision of the court, in the exercise of its right to run its own proceedings within the requirements that there should be a fair trial, and secondly, the practicalities of service on a potential litigant or his attendance at the hearing. There will be cases where notice to a father would create a significant physical risk to the mother, to children in the family, or to other people concerned in the case (see for instance Re X (Care: Notice of Proceedings) [1996] 1 FLR 186). That might result in the court balancing the fairness to the father of notice, against the real risks of the consequences of such notice.”
In so far as this suggests that Re X was decided upon the basis of a physical risk, that is incorrect, although, in the excerpt which I have cited above, Stuart White J had, of course, referred to physical violence by way of an example of the sort of situation in which it might be appropriate not to give notice of proceedings. When she set out the proper approach to the question of non-disclosure herself at paragraph 48, the President did not confine her remarks to situations where there was a physical risk. She said,
“The European Court in Keegan v Ireland (1994) 18 EHRR 342 made it clear that a father who has had a substantial relationship with the mother, including cohabitation, should be in a broadly similar position to a father whose marriage has broken down prior to the birth of their child. In my judgment, in such a case the desire of the mother for confidentiality and therefore non-disclosure to the father of the proposed adoption proceedings cannot prevail over notice to the father unless there are strong countervailing factors. Among such countervailing factors might be for instance rape, or other serious domestic violence that placed the mother at serious physical risk. There may well be other situations in which a father should not be informed of the proceedings and my examples are, of course, not exhaustive.” [my emphasis]
In Re AB, the Court of Appeal was concerned with a woman who had become pregnant, she said, as a result of rape by a stranger. She had concealed her pregnancy from her husband. The issue had arisen as to whether the husband should be notified of the child’s existence and the care proceedings in relation to her. The trial judge made trenchant findings about the unreliability of the mother’s evidence, including about the alleged rape. He decided that the husband should be notified. The Court of Appeal said that that decision involved the exercise of a broad discretion and that on the findings that had been made about the mother’s evidence the outcome was inevitable. Accordingly, the decision contains no review of the authorities because none was necessary. The observation was made, however, by Thorpe LJ at paragraph 3 that it
“is clear that the court has a general discretion to grant exception from the requirements of the rules but that power is on the authorities only to be exercised in highly exceptional circumstances.”
The thrust of these cases is, therefore, that the court will not be persuaded to sanction the withholding of information about the existence of a child from that child’s parent or to dispense with service on him of proceedings in relation to the child in anything other than exceptional circumstances where there are, as the President put it in Re H; Re G, “strong countervailing factors”.
Re C (A Child) v XYZ County Council strikes me as approaching the issue from a slightly different angle. The 19 year old mother had only realised at a late stage that she was pregnant following a one night stand. She concealed the pregnancy and birth from her family, did not identify the father of the child, and left the child in hospital after she was born with a view to her being adopted. The local authority obtained a care order with a plan of adoption. The question arose as to whether the local authority were obliged under the Adoption and Children Act 2002 (“the 2002 Act”) to disclose the child’s existence to the maternal family and, if he could be identified, to the father and his family with a view to their possibly providing a home for the child. The Court of Appeal considered not. The judgments include a consideration of the duties under the 2002 Act and of Article 8 ECHR. It was held that there was only a duty to make such enquiries as were in the interests of the child and what was in the interests of that child was to find a long-term carer without delay. On the facts, neither the maternal family nor the father offered sufficient prospect of a permanent home to justify a delay whilst they were informed and assessed.
Lady Justice Arden and Lord Justice Collins approached the issue as partly a question of statutory construction, in particular of s 1 of the 2002 Act. Arden LJ held that the paramount consideration was the child’s welfare by virtue of s 1(2). She did not consider that the Act imposed any policy of preference being given to the natural family of a child in terms of placement; the interests of the child as an individual had to be considered. She observed that sometimes the birth tie would be very important and in other cases the argument for keeping the child in the birth family would be weaker.
The judgments give no reason to suppose that the court was contemplating a radical departure from authorities such as those I cited earlier. It can be seen that Arden LJ did not contemplate that the situation that had arisen there would often arise as she said, at paragraph 24,
“The logical consequence of my interpretation of s 1 is that exceptional situations can arise in which relatives, or even a father, of a child remain in ignorance about the child at the time of its adoption…..” [my emphasis]
In the following paragraph she said,
“The effect of s 1 as I have held it to be is consistent with the refusal by the court under the Adoption Act 1976 to give notice of adoption proceedings to a father who had had only a fleeting relationship with the child’s mother: in Re H; Re G …the President of the Family Division (Dame Elizabeth Butler Sloss) ordered that no notice of adoption proceedings needed to be given to a father who had never cohabited with the child’s mother.”
The particular facts of the case and the route to adoption provided by s 19 of the 2002 Act were clearly very influential in the decision. Thorpe LJ observed, at paragraph 69, that a disadvantage of the decision of the local authority to apply for a care order was that “it undoubtedly led all the professionals in the case to assume the duty and responsibility that arises in any application for a care order to explore profoundly the possibility of a placement, if not with a parent, then within the extended family” rather than concentrating on “the opportunity provided by s 19 of the Adoption Act to fast track [the child] into adoption in accordance with her mother’s wishes”.
Mr Anelay and Mr Squire accept that “the starting point is that [F] should know of the existence of his son and should be able to participate in future care and adoption proceedings” and that “only in an exceptional case should that general rule be overridden”. This realistic position accords with the authorities as I see them. I would observe, in passing, that this approach is also consistent with another strand of authority which includes, notably, the House of Lords decision in Re D (Adoption Reports: Confidentiality) [1996] AC 593. That case was concerned with whether particular evidence (part of a report of the guardian ad litem) should be disclosed to the mother in contested adoption proceedings but the five principles which Lord Mustill identified as governing that decision are illuminating when considering the more fundamental prior question of whether a parent should be informed of the very existence of the proceedings or even that they have a child. The principles are set out at page 615 of the report. All repay consideration. They culminate in the following:
“5. Non-disclosure should be the exception and not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”
In Re X (Adoption: Confidential Procedure) [2002] EWCA Civ 828 the Court of Appeal added that the interests of the adult parties may also support non-disclosure in an appropriate case.
The appellant’s complaint is that the judge did not just look for exceptional circumstances but proceeded on the basis that only a significant physical risk would do and this was to set the test too high.
I agree that the authorities do not impose a requirement of significant physical risk. Harm and risk come in many guises and, like Thorpe LJ, I would be anxious about attempting to define what may make a case exceptional enough to justify departing from normal principles. It may be a moot point whether Mostyn J was actually setting himself a test involving significant physical harm or, as Thorpe LJ says, simply emphasising the high hurdle that will have to be overcome before a father who is married to the child’s mother and also living with her is kept in ignorance of the fact that he has a child and deprived of the chance to participate in the legal process relating to that child. Whatever the judge had in mind, however, the balance was inevitably going to come down against M’s applications and his determination is not in any way undermined by this reference of his to a significant physical risk.
Mr Anelay further submitted that the judge was wrong if he was suggesting, in paragraph 44 of his judgment, that future harm could only be relevant in this context if it was established that it was more probable than not that it would occur.
It was a surprise that it was upon Newham London Borough Council v AG [supra] that Mr Anelay QC chose to rely in support of this submission. The Newham case was subjected to (and survived) scrutiny by the House of Lords in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 and, if the approach to likely harm in care proceedings is relevant by analogy, as Mr Anelay submits that it is, it is to that authority that recourse would normally be had. It establishes that the word “likely” in the context of the threshold criterion in section 31(2)(a) (“the child concerned is suffering, or is likely to suffer, significant harm”) is used
“in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.” [Lord Nicholls @ page 195]
Like Thorpe LJ, I would not support Mostyn J’s observation in the language of probability in paragraph 44 of his judgment. I think Mr Anelay is right in submitting that a more appropriate formulation may be akin to that used in care proceedings and I would suggest that Lord Nicholls’ words may be helpful.
However, the judge found, critically, that there was no medical or other expert objective evidence that supported M’s case, that it was “pure supposition” that revealing the child’s existence would affect F as adversely as M suggested it would, and that at most there would be a “degree of upset and confusion” which the judge was hopeful could be mitigated if the revelation was managed appropriately. This was not the sort of harm that would justify keeping F ignorant of his son’s existence and, as I have already observed, her application was bound to be refused.
It is for all these reasons that I would also dismiss the appeal.