In the Matter of RA (Baby Relinquished for Adoption: Case Management)

By application dated 27 January 2016, Mr. and Mrs. D seek an adoption order in respect of a little boy, RA, who was born in August 2015, and who has lived with them for virtually all of his life. This judgment is delivered within those proceedings at the conclusion of a Case Management Hearing. The decisions required at this interlocutory stage raise important issues which will determine not only the future progress of this application, but potentially the future outcome for RA. Given the significance of the issues, and the interest shown by the Central Authority of Latvia in the developments in this case, I reserved judgment to reflect on the arguments. As it happens, I wished further assistance on a few discrete topics on which I invited written submissions from the represented parties, which were provided after the hearing, on 22 April (Local Authority) and 25 April (Guardian). In the period in which judgment was reserved, I received a further communication from the Latvian Central Authority (2 May).

The issue before the court can be summarised thus. In an otherwise uncontested adoption application in relation to a baby relinquished by his parents at birth, a family member (the maternal grandmother) in the parents’ home country, Latvia, has lately been traced, and has expressed interest in caring for the baby. The birth parents are opposed to placement of their son with the maternal grandmother, as are the Local Authority and the prospective adopters. The birth mother indeed says that if the current adoption application were to fail for whatever reason (if, for instance, the Court took the view that the child’s interests would be best served by placement with the grandmother), she would want to put herself forward to care for her son, rather than see him placed with her mother. The Latvian authorities have conducted a preliminary assessment of the grandmother, which is said to be positive. The Local Authority argues at this hearing that even if the maternal grandmother could be said to represent a realistic placement option for the child, such a placement will never be able to match his current settled home with carers (Mr. and Mrs. D) who have looked after him nearly all his life, in an arrangement which is supported by his natural parents; it argues that no further assessment of the grandmother is therefore necessary, and that the adoption should proceed to final hearing forthwith. It points to the unusual but possible outcome of these proceedings, that if the adoption application fails, the mother would be able to mount a persuasive case to assume care of her son – an outcome for which she does not currently contend, indeed one that she has hitherto not contemplated. The Children’s Guardian has recommended that I should obtain a full assessment of the maternal grandmother before taking any further steps in the proceedings. The Latvian Authorities indicate their strong opposition to adoption, and wish to promote the maternal grandmother as a long-term carer for RA.

While Baker J considered a number of possible scenarios which may face local authorities dealing with relinquished babies in Re JL & AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam) (“Re JL & AO”) at [55], this was not one of them.

For the purposes of considering this issue, I received written and oral submissions from Mr. William Tyler QC on behalf of the Local Authority. On the day before this hearing, I had joined RA as a party to the application at the invitation of Cafcass – a course which was supported by the Local Authority – and the reporting officer was appointed as RA’s Guardian. Ms. Lisa Phillips was helpfully instructed on the eve of the hearing and prepared a short position statement and addressed me briefly. I am extremely indebted to both advocates for their assistance. No other party was present or represented. The views of the prospective adopters of RA entirely correspond with those of the Local Authority. The mother, a respondent to the application (having not given notice under section 20(4)(a) of the Adoption and Children Act 2002 [“the 2002 Act”]), set out her position in a witness statement (see below [25]); the father did not declare any distinct or separate position from the mother. The Central Authority of Latvia was invited to attend and/or be represented at the hearing but did not do so; its position, extracted from a document which it submitted to the court, is summarised below at [20].

My discussion of the issues and the route by which I arrived at case management directions is discussed below. I summarise my decision here:

I shall request the Latvian Central Authority to provide to this Court, as soon as reasonably practicable, the full assessment of the maternal grandmother, which has already been commissioned in Latvia;

I shall give permission to the Local Authority to obtain expert opinion on the issue of RA’s nationality, and specifically whether he is already a British Citizen, or can readily acquire British Citizenship;

The birth parents and Mr. and Mrs. D shall have permission to file and serve short statements of evidence in response to the assessment of the grandmother and/or the expert opinion;

The Children’s Guardian shall prepare an analysis and report on the adoption application;

If the Children’s Guardian recommends that it is in the best interests of RA that he should be placed with his maternal grandmother, she shall further file and serve:

a position statement setting out the legal framework by which she contemplates this outcome could be achieved;

her stance on how the anticipated application of the mother to assume the care of RA shall be case managed;

The Central Authority of Latvia shall be at liberty to file and serve any further representations on the issues before the court;

I shall list the application for further hearing before me.

RA is 8 months old; he was born prematurely, at home, in the presence of a maternal aunt, in August 2015. RA’s parents took him straight to hospital where they left him; they did not return to visit him, and have not seen him since. He remained on the Special Care Baby Unit until 24 September 2015. The Local Authority was notified of RA’s presence on the ward on the day after his birth, and the social worker urgently contacted the parents to discuss plans for his care. On RA’s discharge from hospital, and with parents’ agreement, he was placed with a couple, Mr. and Mrs. D, who are ‘Early Permanence Foster Parents’ (foster parents approved to adopt). He has been with them ever since – altogether 30 weeks, more than three-quarters of his life at the present time.

RA’s mother and father are Latvian citizens but have lived in England since 2009; they have never married. They separated while the mother was pregnant with RA. RA has two full siblings who live with the mother, and who have contact with their father. The mother and father believe that raising another child within the family would impose upon them too heavy a burden, financially and otherwise. They have indicated that they do not wish to have any form of contact with RA.

RA has Latvian nationality. He may well have British nationality too (see below at [15]). RA’s forename is a classic English name chosen specifically because his parents want him to have the best chance of integrating here.

Both parents gave their consent to RA’s adoption in this country by adopters to be chosen by the Local Authority, in a manner which conforms to the requirements of the section 19 and section 20 of the 2002 Act, and the Adoption Agencies Regulations 2005 – the mother gave her consent on 5 October and the father on 16 October 2015.

On 4 December the adoption panel considered RA’s situation and recommended permanence for RA through adoption; it endorsed RA’s placement with Mr. and Mrs. D. This recommendation was not initially approved by the Agency Decision Maker (“ADM”), as the ADM wished the Latvian authorities to be notified of RA’s situation. The process of notifying the Latvian authorities commenced on the 15 December 2015.

On 14 January 2016, the ADM confirmed the placement for adoption with Mr. and Mrs. D and from that time, his placement with them became an adoptive placement. A few days later, this application was issued.

I have summarised the essence of the Local Authority’s case at [2] above. The Local Authority, the birth parents and the adoptive applicants all make common cause.

In formulating its case, in preparing its Annex A report (PD14C FPR 2010, Annex A), and indeed in communicating with the Latvian authorities (see [18] below), the Local Authority has proceeded on the footing that there is no one within the extended natural family here or in Latvia who would be in a position to care for RA in the short-term or the long-term; their working assumption was that he “cannot remain within his birth family” (ref ‘Recommendations’: Annex A report) (my emphasis). In making this assertion they relied on information supplied to the social workers by the birth parents. Mr. Tyler submits that even though that information has been shown to be (potentially at least) incorrect, it is not necessary to go down the route of assessment of the grandmother; he draws attention to Baker J’s decision in Re JL & AO and the reference (at [56]) to the need for “a thorough analysis of the realistic options for the child” (see below [32]) but invites me to draw a distinction between ‘analysis’ and ‘assessment’, contending that a sufficiently “thorough analysis” of the option of placement of the child with his grandmother in Latvia can be performed now, on the information available, without the need for further information about or assessment of her.

Mr. Tyler further contends that in any welfare review under section 1 of the 2002 Act, many of the factors which will inevitably fall to be considered in favour of RA’s current placement have ‘stellar’ significance, including Mr. and Mrs. D’s “deep strong attachment” to RA (section 1(4)(a)/(b)), their willingness to promote his Latvian heritage (section 1(4)(d)) and the need to avoid delay (section 1(3)); he argues that these factors are bound to eclipse or trump (my word not his) any combination of factors which would be properly considered in the grandmother’s favour (including those under section 1(4)(f)(i)/(ii)/(iii) of the 2002 Act). The Local Authority submits that if there is to be any further evidence-gathering to address section 1(4)(f)(ii) ibid. (i.e. “the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs”), it should be done urgently.

Given the importance which the Latvian authorities attach to the issue of RA’s nationality (see below [17-20]), I raised the question at the hearing as to whether RA has dual citizenship, i.e. is he in fact a British Citizen or entitled to British Citizenship? This does not on the current information give of an easy answer. He may be a British Citizen given that he was born here and either of his parents may be a British Citizen or ‘settled in the United Kingdom’ (British Nationality Act 1981, section 1(1)) (Footnote: ¹ ) . On the advice and information presently available, much appears to turn on whether the parents qualify for British Citizenship under the (now revoked) Accession (Immigration and Worker Registration) Regulations 2004 (as amended). As I understand the position, in order automatically to have attained British citizenship, the parents (or one of them) would have to have held worker registration for the first 12 months of employment in the United Kingdom and then been a 'qualified person' for the subsequent 4 years. It is not currently clear whether this is so. Even if that provision does not apply, I understand that it may be possible for one of the parents to register RA as a British Citizen (assuming one or other had completed a 5-year period as a 'qualified person' from 30th April 2011). The Local Authority contends that if RA were shown to have British Citizenship this may serve to neutralise some of the key submissions raised by the Latvian Central Authority.

In spite of all the above, the Local Authority responsibly raises a potential concern about the creation of a situation in which RA becomes a ‘limping infant’ – a child who is the subject of a lawful and consensual adoption order here which is not recognised in Latvia; a concept which appears to have survived the Supreme Court’s decision in Re N (Children)(Jurisdiction: Care Proceedings) [2016] UKSC 15. The Authority nonetheless observes that this Court has – thus far at least – more than sufficiently observed the obligations of the Vienna Convention on Consular Relations 1963 (“the 1963 Vienna Convention”).

After a false start, when the Local Authority approached the UK Central Authority rather than the Latvian Central Authority to notify them of RA’s Latvian citizenship and status as a child placed for adoption here (15 December 2015), in purported compliance with the guidance offered by the President in Re E (A child)(Vienna Convention) [2014] EWHC 6 (Fam), in February 2016 the Local Authority re-targeted its efforts and contacted the Latvian Embassy. On 12 February, Ms. Inga Sergeiceva of the Consular section of the Latvian Embassy replied to the Local Authority’s letter, asking whether it had given consideration to placing RA with relatives; it added that:

On 22 March, the Local Authority wrote again to the Latvian Consulate and also to the Latvian Central Authority advising them of the progress of the proceedings, inviting them to make representations, and to attend the next listed hearing; it specifically asked the Latvian Authorities to confirm whether, if the English court accepts the parents’ contention that “there are no other family placement options for him, either here or in Latvia” (underlining added), the adoption order “will be recognised and enforceable in Latvia”. By reply, Ms. Sergeiceva did not answer the question posed; she declined the invitation to become actively engaged in the proceedings, but asked to be informed on the outcome of the application.

On 31 March, the Latvian Central Authority wrote to the Local Authority indicating that it intended to make enquiries of possible relatives in Latvia; in view of the working assumption reflected in the Local Authority’s letter to them (see the passage underlined in [18] above) it is not entirely surprising that they did this. The Local Authority responded, drawing attention to the fact that the birth parents had not told their families about RA’s birth. On 5 April, Ms. Upena of the Latvian Central Authority e-mailed the Local Authority informing it that the maternal grandmother had been located and interviewed, and that she had indicated that she was “against” the adoption and wished to offer long-term care for RA: she “is ready to become long term carer for [RA] and provide a loving and stable home and she will preserve his national language, linguistic and cultural background”.

The Latvian Central Authority then filed its submission for this hearing, dated 14 April 2016, from S. Saukuma-Laimere, Acting Deputy State Secretary on Judiciary in Latvia. The submission contains the following passage:

The 2016 Latvian Declaration (a copy of which was provided in translation) is apparently predicated on the basis that:

The Latvian Consulate confirmed that it was not able to provide attendance or representation at the hearing on 21 April.

Following the hearing, the Local Authority’s solicitor wrote to the Latvian Authorities in these terms (25 April 2016):

Ms. Upena helpfully replied on 2 May as follows:

As earlier indicated, the birth mother had informed the Local Authority that there was no-one within the parents’ wider family who would be able to care for RA, and the Local Authority, in formulating its plans for RA, relied on this representation. The mother has now filed a statement of evidence for this hearing. Given its significance, I set it out almost in full:

The birth father has not filed evidence; there is no reason to suspect that he takes any different view from that of the mother.

At this stage, the Guardian considers that it is right that, notwithstanding the regrettable delay involved, the option of family placement for RA with his grandmother should be more fully assessed, and in that regard she wishes the Latvian Authorities to complete its full assessment of the grandmother and to provide a report of the assessment (in translation) as a matter of urgency. She does not see “how the court can proceed with the adoption application whilst a family member is willing to care and an assessment of that family member is outstanding” (reference Ms. Phillips’ Position Statement). She considers that RA’s positive experience of being parented by Mr. and Mrs. D would stand him in good stead if it proves to be in his overall best interests for him to move to a new home, and he is required to transfer his attachments.

No one suggests that I cannot exercise jurisdiction in relation to the adoption of RA, a Latvian child; although the proceedings fall outside Council Regulation (EC) 2201/2003 (“BIIA”), jurisdiction nonetheless lies with this court, having regard to section 49 of the 2002 Act (see Re N (Children)(Adoption Jurisdiction) [2015] EWCA 1112 at [76/77/84/177]). As the issue before me relates to his adoption (or potential adoption) my determination even at this case management stage must be governed by the principles set out in section 1 of the 2002 Act – RA’s welfare throughout his life is my paramount concern. I am also conscious, as statute directs me, that any delay in coming to the decision for RA is likely to prejudice his welfare. With these principles in mind, I have approached the case management issues here by focusing on four questions.

The first question is whether I should delay the proceedings by directing the preparation, filing and service of an assessment of an interested family member (the maternal grandmother), or whether I should (as the Local Authority encourage me) proceed with the application on the information available.

Relinquished baby cases fall into a particular category of adoption case; these cases may have been more commonplace 40 or more years ago, but they still exist, as this case, and Re JL & AO demonstrate in very recent times. In these cases, the birth parents (or birth mothers on their own) earnestly wish to make dignified and confidential arrangements for the adoption of their child, and are anxious about even the slightest leak of information to the natural family; they often wish to achieve permanence for the child, and finality for themselves, with the minimum of delay. Holman J described this situation in Z County Council v R [2001] 1 FLR 365:

Holman J approached the issue with the expectation that “[s]o far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained”; he expressed concern about the dangers of eroding the respect afforded to the confidentiality of the process and of the mother’s situation in particular. The Local Authority relies on these comments here, but I am not sure that they can be followed in an unqualified way. As Arden LJ rightly says in Re C v XYZ County Council [2007] EWCA Civ 1206, [2008] 1 FLR 1294 (at [41]), the Local Authority cannot or should not proceed without at least questioning what the mother says:

Baker J in Re JL & AO followed Arden LJ’s approach, as do I. 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. While it may not be necessary in a relinquished baby case to perform the profound investigations which would ordinarily be expected before a conclusion could confidently be reached that “nothing else [but adoption] will do”, it seems to me that a “high degree of justification” is nonetheless required before a court can determine whether a child should be adopted (see Lord Wilson in Re B (Care Proceedings: Appeal) [2013] 2 FLR 1075 at para 34). It is, as Baker J observed and I agree, still necessary therefore to undertake a ‘thorough analysis of the realistic options’ for the baby (Re JL & AO [54]/[56]) applying the relevant section 1(4) factors to the individual facts of the case: see Re JL & AO (at [56]):

Baker J had of course earlier importantly observed ([50]) that a sufficient analysis may be achieved even though the natural family remain in ignorance of the existence of the baby:

I agree with this approach, and in light of the above, I accept Mr. Tyler’s submission that the analysis of the realistic options could be undertaken without full assessment of those options; in each case it will depend on the circumstances of the individual child, and his/her unique situation. The Local Authority, and the Court, will have to consider whether, and if so to what extent, assessment of other potential carers is proportionate (see Re P (Step-Parent Adoption) [2014] EWCA Civ 1174).

In this case, the Local Authority proceeded initially on the basis that there was no family member who could look after RA; the inference I draw from the documents I have considered is that had such a family member been identified by the parents, he/she may well have been contacted by the authority and/or considered as a potential carer (see again the passage underlined in [18]). While Arden LJ was of course right to observe that a court considering permanent substitute care should not require a preference to be given as a matter of policy to the natural family of a child (“[s]ection 1 does not impose any such policy. Rather, it requires the interests of the child to be considered”, at [42]), nonetheless the child and the family have rights under Article 6 and Article 8 of the European Convention on Human Rights which must be observed; these rights could, in particular cases, translate into family placement, or at the very least serious consideration of family placement. While the degree of interference with family life rights is likely to be less in a relinquished baby case than where the parent-child relationship is severed against the parents' wishes, (see Re JL & AO [55]) the rights of the individuals involved are plainly factors which must weigh heavy in the balance when the Local Authority or the Court is considering how to proceed.

So can I, or should I, perform the relevant analysis on the information available now? I have already alluded ([14] above) to the fact that there are factors in section 1(4)(f)(i)-(iii) which are relevant to consideration of the maternal grandmother; it is also relevant (possibly a matter of importance) that RA has Latvian nationality. That RA has been born to Latvian parents, and has a family member in Latvia who wishes to care for him, and where Latvia represents the seat of his cultural and linguistic identity are also all relevant considerations which can be brought into the reckoning, and can be weighed at this stage without further information from Latvia, or assessment of the grandmother.

The only other ‘realistic option’ at present is RA’s placement with the Ds. Mr. and Mrs. D undoubtedly have a solid case for an adoption order in their favour in respect of RA. Of the wide assortment of considerations which will be relevant to the court’s appraisal of their situation, Mr. and Mrs. D are likely to be able to demonstrate to a convincing degree that many of them point to a conclusion that it would be in RA’s best interests for an adoption order to be made; they can surely maintain (among other considerations) that RA will benefit from the continuity of care which they have provided to him, that RA is settled in the only home he has known and has formed attachments to them, that he has been introduced to and has fledgling relationships with the wider extended family, that he is geographically close to his birth mother, father and siblings should he wish to contact them in the future. These facts are available to weigh in the analysis now.

In principle, therefore, as I said above ([34]), I agree with Mr. Tyler – analysis and assessment are different, and 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. However, as things have developed in this particular case at this time, members of the natural family have been notified, and the maternal grandmother is indeed currently being fully assessed by the Latvian Authorities. In order to undertake the relevant ‘thorough analysis’ now within these proceedings, the Court ought not to shut out the assessment report of the grandmother simply because the birth parents do not support such a placement, or because Mr. and Mrs. D appear to have a strong claim for adoption of RA; the assessment may well assist the court to reach its decision, one way or the other. The Article 6 and Article 8 ECHR rights of the protagonists in this case at this time are protected by introducing the assessment into the welfare evaluation concerning RA. I am conscious that waiting for the report may have an effect on the timetable for this application, but given RA’s settled placement with the applicants, any delay is not gravely prejudicing his interests.

The second question I have considered is what, if any, role should the birth parents play in the proceedings going forward? It is perfectly clear that the birth parents at all times have wished to make discreet arrangements for the adoption and upbringing of their son by substitute parents, without the knowledge let alone involvement of their family. They now find themselves at risk of being propelled towards a dispute, which may indeed turn out indeed to be a head-on battle, with the maternal grandmother, for care of RA.

I am keen to ensure that, although respondents to the application, the birth parents are insulated to the extent that they choose to be from the litigation at this stage; they have no separate or positive case to advance nor any application to pursue (they plainly do not wish to oppose the adoption – a course which would be open to them only with leave: section 47(5) 2002 Act). However, they should be given the chance, should they wish it, to respond to the assessment of the grandmother; their comments on the information contained in this assessment may indeed be important. If, in due course, the court refuses the adoption application, I would expect that a court will give them then an opportunity to present a claim to take on the care of RA. Until or unless that moment arises, they should be assured that their views about RA’s future assume considerable importance (“significant weight” per Baker J in Re JL & AO at [50] and [53]) in the overall welfare review.

Thirdly, I have considered whether the approach of the Court in dealing with this application is compliant with the requirements of the 1963 Vienna Convention and/or the expectations of the Latvian Saeima. A number of recent cases (including Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam); [2014] 1 WLR 2670; [2014] 2 FLR 151 [2014] EWHC 6 (Fam), Re D (Special Guardianship Order) [2014] EWHC 3388 (Fam), [2015] 2 FLR 47, Merton LBC v LB [2014] EWHC 4532 (Fam), Merton LBC v B (Central Authority of Latvia intervening) [2016] 2 WLR 410, [2015] EWCA Civ 888, Re CB [2015] EWHC 3274 (Fam), and Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112) have carefully and judiciously examined the approach of the English Courts to the placement of foreign national children in permanent substitute care in this country, an event of ever-greater regularity given the rising numbers of workers moving between States in Europe and beyond. The upshot of these cases leaves no doubt that English Courts can make adoption orders in relation to foreign national children, and in achieving that objective can dispense with the consent of foreign national parents.

However, it will be obvious from their submission (see [17]-[24] above) that the Latvian Authorities are concerned that the English Courts should observe international conventions scrupulously in order that the outcomes do not offend against international expectations. The submission heavily draws on the 2016 Latvian Declaration which has as its keystones Article 8 and Article 20 of the UNCRC. Article 8 UNCRC provides:

The Latvian Authorities are concerned that the RA’s rights enshrined in Article 8 and/or Article 20 of the UNCRC are under threat by this proposed adoption. I am satisfied that this is not so. The obligation on the State is (per Article 8) to “respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.” Under Article 20, RA is entitled to the “special protection” afforded to a child who has temporarily or permanently been deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, as to which child, “solutions” shall include (per Article 20): “the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.”

I shall, of course, when conducting the welfare review with regard to the matters set out in section 1(4) of the 2002 Act pay “due regard’ to the Article 20 UNCRC factors, and if I conclude that an adoption order accords with the paramountcy test in section 1(2) of the 2002 Act, then the undoubted interference with the Article 8 UNCRC – and, of course, Article 8 ECHR – rights is entirely lawful and thus compliant with our international legal obligations. Nationality is plainly relevant to this overall review; given the understandable significance which the Latvian authorities attach to this in the instant case, it is plainly in RA’s interests (indeed it is necessary, per Part 25 FPR 2010) for it to be clarified as soon as possible, whether he is or could readily become a British Citizen. This requires the provision of expert opinion for which I will grant permission.

One of the unhappy potential consequences of not observing strictly the expectations of international instruments is the risk that adoption orders are made here which are not recognised in the countries of which the subject child is a citizen – the so-called ‘limping’ adoption. If this is a possibility, it is something which the court will have to take into account when considering the welfare of the child throughout his or her life: (JL & AO [41]). This was the position in Re CB (see above, Moylan J’s judgment at [40] and [47]), but the risk of this happening in relation to RA (perhaps distinguishable on the basis that here we have a proposed consensual adoption whereas in that case it was contested) appears significantly less likely in view given the recent (2 May) response from the Latvian Central Authority (see [24] above).

Fourth, and finally, I have considered whether there were any steps which could be taken by a Local Authority to anticipate or avoid delay in resolving proceedings of this kind, for instance by the late emergence of a family member (such as the maternal grandmother here) who is willing to offer a home to the child.

Recent developments in this case underline the importance of a Local Authority (i) considering carefully the issues of possible family placement at the earliest opportunity, (ii) assessing critically from the outset what the mother and father say about their families, not merely just accepting at face value their dismissal of family placement here or abroad (see Re C v XYZ County Council above), and (iii) being proactive in addressing the potential complications.

The Local Authority must further consider at the earliest opportunity (i.e. “without delay” per Munby P in Re E at [47(iii)], and Re CB (A Child) [2015] EWCA Civ 888 at [84]) (a) whether it is obliged to notify the consular officials of the relevant foreign State pursuant to Article 36 and/or Article 37 of the 1963 Vienna Convention, and (b) its opportunity to consider request for assistance and co-operation from the Central Authority of the other State in advancing its planning for the child. As for the former, in Re JL & AO Baker J suggested (at [66]) that:

In relation to (b) in [48] above (“assistance and co-operation from the Central Authority of the other State”), although adoption and measures preparatory to it are outside the scope of the 1996 Hague Convention and BIIA, Local Authorities should nonetheless have regard to the Guide produced by the International Child Abduction and Contact Unit (ICACU) to ‘Completing the Request for Co-operation Form’ and the associated President’s Guidance on the operation of ICACU 2014 (10.11.14). The ICACU Guide provides examples of situations where the Central Authority may be requested to provide co-operation, including the provision of “assistance from the foreign authorities in identifying and/or assessing potential kinship carers” and where “the welfare plan for the child is, or may become, a plan for placement of the child(ren) in the other country”. Those situations may well arise in these relinquished baby adoption cases too.

Accordingly, where a Local Authority in any case of this kind is in doubt about either the need to investigate and/or assess family members, and/or its obligations under the 1963 Vienna Convention to notify the relevant consulate, and/or the appropriateness of engaging the Central Authority of the foreign State to request co-operation (perhaps for the purposes of assessing a potential kinship carer), it may wish to consider making a pre-emptive application to the court under Part 19 FPR 2010 (‘Alternative Procedure for Applications’). By this process the Local Authority can request the court to make a “decision on a question which is unlikely to involve a substantial dispute of fact’ (rule 19.1(2)(b)). It is I suggest the mechanism which is contemplated by rule 14.21 FPR 2010 for the invoking of the inherent jurisdiction where no proceedings have started and an adoption agency or local authority requires “directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption”. In this situation, Part 19 provides an obvious mechanism. The Local Authority here suggests that clarification of whether there should be notification to consular officials, and/or notification to or assessment of extended natural family is directly analogous with the issue of the possible non-notification of a father without parental responsibility. Part 19 of the FPR 2010 derives from Part 10 of the Family Procedure (Adoption) Rules 2005; the procedure under Part 19 helpfully permits an application to be made without naming a respondent (rule 19.4 FPR 2010 and FPR PD19A, para 2.2).

Clearly a significant advantage of making a pre-emptive application in the appropriate case is that delay can be avoided, even though there is a small (but in my view acceptable) risk that cases which are in reality straightforward acquire artificial or imagined complications. I do not suggest that a Part 19 application is likely to be appropriate in every case of this kind; the Local Authority will need to exercise a judgment on the particular facts, having regard to the individual circumstances of the subject child. But it may have been well deployed in this case to avoid the situation which has arisen many months after the adoptive placement has been made.

That is my judgment.