The London Borough of Hounslow v El & Ors (Rev 1)

This hearing has been relatively short; the application by the local authority is supported by the mother (Mrs L) and the guardian. However this is an exceptional application and requires unique facts for me to approve it. The issues are of vital importance to these two twins, who are 5 months old and for the person who is not here and has no knowledge of these proceedings, namely the mother’s husband, “Mr L.” or as I shall refer to him “H”, who lives in Poland. Hence it is necessary for me to go into some detail in scrutinising the application and considering whether I should grant it or not. The application has been made under Part 19 of the family procedure Rules 2010 and FPR 14.21, it is by the local authority, who seeks an order dispensing with the need to notify and seek the consent of the husband of the twins’ mother, to their adoption, together with a family in England.

The reason is that the mother states he is not the biological father of the children, but rather they are the product of the briefest of extra marital affairs, commonly known as a ‘one night stand’ which took place in London after a chance meeting with an Indian stranger in bar. The mother’s husband (‘H’) did not even know that his wife was pregnant leading up to her arrival back in England earlier this year and the day the twins were delivered by caesarean section on 15 June 2020. Mr L’s name does not appear of the twins’ birth certificates. On the 29^th July 2020, Mr Nicholas Goodwin QC sitting as a deputy High Court judge was satisfied that the children were habitually resident in the jurisdiction and gave directions in the matter.

I have read the trial bundle and skeleton submissions and authorities, and the mother gave oral evidence on affirmation from Poland during this hearing. She had the services of a Polish interpreter. I have repeatedly reminded myself that the evidence and legal argument, has gone unchallenged and hence I need to treat them with caution.

I am grateful for the detailed legal and factual submissions that have been filed on behalf of the parties. Ms Walsh represents the local authority, Mr Degun represents the mother (who had the prescience to attend from Poland on two devices to ensure that simultaneous translation was possible by the court appointed Polish interpreter) and Ms Cover represents the children by way of their Children’s’ Guardian Ms Poienar. I have read the three skeleton arguments and the addendum submissions on behalf of the children.

I am also grateful to the Polish Embassy (which has rightly been notified of this case and this hearing in the spirit of ‘transparency and openness’ as set out by Munby P in Re N [2015] EWCA Civ 1112,) for the following missives, sent to the solicitor for the local authority:

Re L (Adoption Order: Identification of Possible Father) [2020] EWCA Civ 577was decided after A, B and C by the same court.

M appealed. The Court of Appeal, in dismissing M’s appeal, held that:

“21.

In a case where a mother wishes a child to be placed for adoption without notifying the father, but where there is uncertainty about the identity of the father, the issues of notification of the birth of the child and paternity testing are interlinked. The approach identified in Re A, B and C at para [89] contemplates an individual being a putative father, although in one of the two cases where the issue concerned notification of a father, paternity had not been confirmed. A putative father is a person thought to be the father, although paternity has not been formally confirmed. The present case concerns a possible father, someone who may or may not be the father. Such uncertainty about paternity is to be regarded as one of the other relevant matters referred to at subpara 6(9) of the summary at para [89] in Re A, B and C. If the court, on all the available information, considers that there is a substantial possibility that a person may be the child's father, that will be a factor to be taken into account alongside other factors bearing on the decision concerning notification. The weaker the possibility, the less likely the court will be to direct an investigation of paternity that compromises the mother's wish for privacy.”

At [25], Peter Jackson LJ in dismissing the appeal concluded that:

In Re AB (Care Proceedings: Service on Husband Ignorant of Child’s Existence) [2003] EWCA Civ 1842 M claimed to have become pregnant as a result of a rape by a stranger. She asked the LA to arrange an adoption. She was married with two children, and had concealed the pregnancy from her husband, whom she said could not be the child’s father. The LA sought directions as to whether the husband should be notified of the child’s existence and the care proceedings in relation to her. The CoA upheld the trial judge’s decision that M’s evidence was wholly unreliable and that the balance was decisively in favour of notifying the husband. The Court also held that the responsibilities of a public authority, the rights of the child, the rights of the husband and the rights of the mother’s other children could not be minimised or suppressed. The Court would be exceptionally slow to grant a relaxation of the rules of service in any circumstances except the most extreme. Thus, Thorpe LJ commented at [3]: "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."

In Re C v XYZ County Council [2007] EWCA Civ 1206 M was a young, unmarried woman, who had conceived the subject child following a one-night stand. M kept the pregnancy a secret and wished for the child to be placed for adoption. At first instance, the judge had directed that the LA disclose the existence and identity of the child to the extended maternal family and, if he could be identified, the putative F and his extended family. M appealed. In allowing M’s appeal, the Court of Appeal found that the first instance judge had misdirected himself in holding that the LA was compelled under the ACA 2002 to disclose the existence and/or identity of a child to the wider maternal/paternal family in such circumstances:

In M v F [2011] EWCA Civ 273 M and F were married with three adult children. F had mental health issues and had previously been violent towards M and one of their children. M became pregnant by F and had concealed from him both the pregnancy and the child’s birth. She claimed to be concerned for the child’s welfare if F were to find out, and that to reveal the truth would damage the family unit.

At first instance, Mostyn J had found that the case did not satisfy the high threshold of ‘exceptionality’ required to deprive F of the right to be informed of his legitimate child’s birth and of the existence of the proceedings, in circumstances where he had parental responsibility. M appealed. The Court of

The existence of ‘family life’ for the purposes of Article 8, will depend on the circumstances in the individual case. In Lebbink v The Netherlands [2004] 2 FLR 463, the ECHR commented at [36]:

“The existence or nonexistence of “family life” for the purposes of Art.8 is essentially a question of fact depending upon the real existence in practice of close personal ties. Where it concerns a potential relationship which could develop between a child born out of wedlock and its natural father, relevant factors include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the father to the child both before and after its birth” (also see Nylund v Finland for reference to

“demonstrable interest in and commitment by”)

“Family life” may also be established between a child and his/her wider family. In Marckx v Belgium (1980) 2 EHRR 330, the court held at [45] that:

“"Family life", within the meaning of Article 8, includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relatives may play a considerable part in family life”

In Re H (Care and Adoption: Assessment of Wider Family) [2019] EWFC 10, [2019] 2 FLR 33 both parents wished to keep the birth of a child a secret from the father's family. Cobb J considered the statutory provisions and the authorities concerning family life and confidentiality. In concluding that the paternal family should be informed of the child's existence, he made the following observations:

… the court, and/or the local authority or adoption agency, is enabled to exercise its broad judgment on the facts of each individual case, taking into account all of the family circumstances, but attaching primacy to the welfare of the subject child.

In exercising that broad discretion, I would suggest that the following be borne in mind. There will be cases (if, for instance, there is a history of domestic or family abuse) where it would be unsafe to the child or the parent for the wider family to be involved in the life of the child, or even made aware of the existence of the child. There will be cases where cultural or religious considerations may materially impact on the issue of disclosure. There will be further cases where the mental health or wellbeing of the parent or parents may be imperilled if disclosure were to be ordered, and this may weigh heavy in the evaluation. But in exercising judgment – whether that be by the local authority, adoption agency or court – I am clear that the wider family should not simply be ignored on the say-so of a parent. Generally, the ability and/or willingness of the wider family to provide the child with a secure environment in which to grow (section 1(4)(f)(ii) ACA 2002 ) should be carefully scrutinised, and the option itself should be "fully explored" (see [28]). The approach taken by Sumner J in the Birmingham case more than a decade ago, to the effect that "cogent and compelling" grounds should exist before the court could endorse an arrangement for the despatch of public law proceedings while the wider family remained ignorant of the existence of the child (see [29] above), remains, in my judgment, sound. This approach is in keeping with the key principles of the CA 1989 and the ACA 2002 that children are generally best looked after within their own family, save where that outcome is not consistent with their welfare, and that a care order on a plan for adoption is appropriate only where no other course is possible in the child's interests (see Re B (A child) and Re B-S).

I am satisfied that if H were to be adopted … would further benefit from knowing that his wider birth family – his grandparents – were aware of his existence, and were given the opportunity to claim him and care for him, even if in the event they are unable to do so. While there is a risk that he may feel abandoned or let down by a family unable or unwilling to claim him, I am of the view that it is better for H if he is adopted that he knows they were aware of his situation and considered it than they lived in ignorance of him. In my judgment the worst outcome for H is that he would learn, many years down the line, that his father was too awkward or ashamed or embarrassed to reveal his existence to his family, and that the court – without cogent or compelling reason – condoned arrangements to keep his birth a secret from those who would have had an interest in him and might actually have claimed him.

The line of 'relinquished' baby cases discussed above ([33] et seq.), where the court is prepared to offer discreet and confidential arrangements for the adoption of a child, all emphasise the exceptionality of such arrangements; in those cases, the court is only ever likely to authorise the withholding of information in order to give effect to a clear and reasoned request by a parent to have nothing to do with the child, usually from the moment of birth. In those cases, the local authority, adoption agency and the court seek to maintain the co-operation of the parent in making consensual arrangements for the child (a key feature of the decision in Z County Council v R (Holman J)) which is greatly to the child's advantage."

The above is from Ms Cover’s compendious analysis for which I thank her. In addition to this is the following extracted from the Local Authority’s submissions:

I have read the statement of the social worker Shanie Dhother dated 29.6.20 and this accords with the above summary . She adds this conclusion

“The Local Authority is of the view that there are no other alternative care options for the L twins through which to establish permanency save for adoption. The local authority considers that, given the circumstances surrounding their conception and the implications for her family life with her husband and children in Poland, the mother’s clearly expressed wish to place the twins for adoption should be respected. The local authority is satisfied that, based upon the account provided by the mother, there is no realistic prospect of identifying the biological father of the twins and, in any event, under section 19 of the Adoption and Children Act 2020, his consent is not required. The complicating factor is the mother’s marriage and the fact that her husband is the legal, though not biological, father of the children. His consent must therefore be given if the adoption is to proceed, unless the court declares that notification and consent are not necessary in the particular circumstances of this case.

The local authority is sympathetic to the mother’s fears regarding the breakdown of her relationship with her husband and the potential loss of her relationships and contact with her children. The local authority considers that these are realistically foreseeable consequences of the mother’s husband discovering her infidelity and the existence of the twins and that it is reasonable for the mother to hold these fears. If the husband had to be informed of the twins’ birth the consequences for the mother could be catastrophic and lifelong. Furthermore, the local authority does not envisage that informing the husband would be of any benefit to the twins as it would seem highly unlikely that he will want to claim them and bring them up as his own children. On the contrary, it would seem likely that the husband would concur with the mother’s wish that they should be placed for adoption. “

Added to this is the oral evidence of the mother- I accept what she says, she was distraught and one can see why. She explained why she initially said that her husband was the father of the twins, I accept that she was lying about that (she explained that it was out of sheer embarrassment) and the truth that their father is (as she put it orally) an “Indian man”, who she has not seen before or since the night of conception and for whom she has no contact details. The truth is that she and her husband no longer have sexual intercourse and have not done so for a number of months, if not years. The mother is willing to assist with the DNA testing of the twins , so that their racial/ethnic heritage can be confirmed and to attend the British Embassy in Warsaw to sign the requisite adoption forms.

I ask myself, what possible motive could this mother have for lying about the paternity of her children? Having seen her give evidence I am sure that if she could she would have kept them in her family with her other children. But she cannot. I have born in mind the fact that the twins have half siblings

On the subject of other relatives, Ms Cover has submitted the following on behalf of the twins and their best interests:

“M’s father is deceased. She has no siblings and limited contact with her own mother, whom she states struggles with alcohol dependency.

This is also a convenient place for me to add the following written submission for Ms Cover when I am looking at the ‘fair balance’ I should strike between the competing interest of all involved.

“The Guardian is of the view that if, as is very likely, F is not the twins’ biological father, then there are compelling and exceptional reasons to conceal their birth. If he is not their father, then he and his family will be highly unlikely to wish to provide care, and adoption will remain the only viable plan for the children.

Although the children’s welfare is not paramount, it is a very

important consideration, as is the question of delay.. M’s fear of the serious consequences for her and her other children if the F is informed are in the Guardian’s view genuine. She considers it highly improbable that F is the biological father of the twins, and that he and his family would therefore be very unlikely to wish to care for them.

There is in any event the M’s opposition to such a course. There is in the Guardians’ view no realistic possibility of a family placement in Poland. M’s fear of serious disruption to her marriage and family life with her four oldest children appears to be genuine and must be respected. The Guardian observes that fault-based divorce is still the law in Poland, and that the “guilt” of a parent may be a factor in the court’s decisions about the children. In any event, M fears that her older children will be angry with her and may reject her. The serious risk of disruption to that family must be weighed against the unlikelihood of a family placement for the boys.”

The mother’s counsel has filed a skeleton argument supporting the application. I am grateful for her engaging with these proceedings. She obviously wants the best possible life for her twins. She has had to make the most difficult decision a parent can make. She wants to know as much as possible about her twin boys and their placement and this will all be excruciating for her.

I find as a fact that the mother’s husband is not the biological father of the twins. There is no uncertainty in my mind about that. I find on the civil standard of proof that the presumption of legitimacy is rebutted by virtue of the mother’s written and oral evidence and what would have been likely if she knew that her twins were the legitimate issue of her husband.

What this means is that H is therefore not the biological or ‘natural’ father of the children. This means that he does not have parental responsibility for the twins. Bearing in mind all the circumstances of the case and the statute and case law that has been presented to me, I find that the exceptionality criterion is satisfied in an individual fact (lack of biological paternity) and ‘holistic’ sense. I have decided therefore that the local authority’s application can and should be granted.