IN THE FAMILY COURT AT WEST LONDON
West London Family Court
Gloucester House, 4 Duke Green Avenue,
Feltham, TW14 0LR
Before :
His Honour Judge Willans
(sitting as a Deputy Judge of the High Court)
Between :
LONDON BOROUGH OF EALING | Applicant |
- and – | |
(1) X (2) Y (3) A (by her guardian) | Respondents |
Hearing date: 14 August 2025
JUDGMENT
His Honour Judge Willans:
Introduction
I am asked to make a decision not to notify a father as to proceedings concerning his daughter. I have considered the papers in the hearing bundle and the written and limited oral arguments from each party. The application is without notice to the father. I bear all of this information in mind.
Proceedings
The proceedings commenced on 23 July 2025 due to concerns the applicant had, as to the care given, or likely to be given to the child, A by her mother, X. The proceedings were allocated to District Judge level as a result of issues including ‘serious domestic violence.’ An interim care hearing followed on 24 July 2025 and then on 25 July 2025. The upshot was that an interim care order was made but separation of mother and child was not sanctioned and X is currently undergoing a parenting assessment in a residential unit.
The order of 24 July 2025 recorded X did not want A’s father notified as to the proceedings. Directions were given for an application, statement in support and skeleton arguments in advance of the Case Management Hearing (CMH) listed on 14 August 2025. In the interim the father, Y was not to be notified of the proceedings. No consideration was given as to the tier of Court to hear the application. The CMH was listed before me but that was only due to availability.
On 14 August 2025 I conducted the CMH. I have given substantial directions towards an Issue Resolution Hearing (IRH) before me on 5 January 2026. In the course of the hearing, I noted no consideration had been given to seeking permission for the application to be released to me sitting as a Deputy High Court Judge. Nonetheless I considered the relevant documents filed and adjourned the matter to seek permission from MacDonald J. to determine the issue. I had good grounds for believing the case would be released given my understanding of its details and previous experience in relation to the release of cases with a similar context. It has been released.
I gave X an opportunity to file and serve a response skeleton argument and indicated I would look to provide a judgment in the week commencing 29 August 2025. I apologise for the slight delay in providing this judgment which has been due to a combination of leave, other commitments, and a short delay to consider whether X would file a response (albeit late).
The parties positions
X argues Y should not be notified of the proceedings which should continue without reference to him. The applicant states it is neutral on the subject. A’s guardian argues Y should be notified.
The Law
In A, B and C (Adoption: Notification of Father and Relatives) [2020] EWCA Civ 41 the Court of Appeal (per Jackson LJ.) made clear the welfare of the child is not the paramount consideration for the Court [§§82-84].
In reaching a conclusion I have regard to the principles governing decision-making found at §89 of the decision and which is set out in full below.
The law allows for 'fast-track' adoption with the consent of all those with parental responsibility, so in some cases the mother alone. Where she opposes notification being given to the child's father or relatives her right to respect for her private life is engaged and can only be infringed where it is necessary to do so to protect the interests of others.
The profound importance of the adoption decision for the child and potentially for other family members is clearly capable of supplying a justification for overriding the mother's request. Whether it does so will depend upon the individual circumstances of the case.
The decision should be prioritised and the process characterised by urgency and thoroughness.
The decision-maker's first task is to establish the facts as clearly as possible, mindful of the often limited and one-sided nature of the information available. The confidential relinquishment of a child for adoption is an unusual event and the reasons for it must be respectfully scrutinised so that the interests of others are protected. In fairness to those other individuals, the account that is given by the person seeking confidentiality cannot be taken at face value. All information that can be discovered without compromising confidentiality should therefore be gathered and a first-hand account from the person seeking confidentiality will normally be sought. The investigation should enable broad conclusions to be drawn about the relative weight to be given to the factors that must inform the decision.
Once the facts have been investigated the task is to strike a fair balance between the various interests involved. The welfare of the child is an important factor but it is not the paramount consideration.
There is no single test for distinguishing between cases in which notification should and should not be given but the case law shows that these factors will be relevant when reaching a decision:
Parental responsibility. The fact that a father has parental responsibility by marriage or otherwise entitles him to give or withhold consent to adoption and gives him automatic party status in any proceedings that might lead to adoption. Compelling reasons are therefore required before the withholding of notification can be justified
Article 8 rights. Whether the father, married or unmarried, or the relative have an established or potential family life with the mother or the child, the right to a fair hearing is engaged and strong reasons are required before the withholding of notification can be justified.
The substance of the relationships. Aside from the presence or absence of parental responsibility and of family life rights, an assessment must be made of the substance of the relationship between the parents, the circumstances of the conception, and the significance of relatives. The purpose is to ensure that those who are necessarily silent are given a notional voice so as to identify the possible strengths and weaknesses of any argument that they might make. Put another way, with what degree of objective justification might such a person complain if they later discovered they had been excluded from the decision? The answer will differ as between a father with whom the mother has had a fleeting encounter and one with whom she has had a substantial relationship, and as between members of the extended family who are close to the parents and those who are more distant.
The likelihood of a family placement being a realistic alternative to adoption. This is of particular importance to the child's lifelong welfare as it may determine whether or not adoption is necessary. An objective view, going beyond the say-so of the person seeking confidentiality, should be taken about whether a family member may or may not be a potential carer. Where a family placement is unlikely to be worth investigating or where notification may cause significant harm to those notified, this factor will speak in favour of maintaining confidentiality; anything less than that and it will point the other way.
The physical, psychological or social impact on the mother or on others of notification being given. Where this would be severe, for example because of fear arising from rape or violence, or because of possible consequences such as ostracism or family breakdown, or because of significant mental health vulnerability, these must weigh heavily in the balancing exercise. On the other hand, excessive weight should not be given to short term difficulties and to less serious situations involving embarrassment or social unpleasantness, otherwise the mother's wish would always prevail at the expense of other interests.
Cultural and religious factors. The conception and concealed pregnancy may give rise to particular difficulties in some cultural and religious contexts. These may enhance the risks of notification, but they may also mean that the possibility of maintaining the birth tie through a family placement is of particular importance for the child.
The availability and durability of the confidential information. Notification can only take place if there is someone to notify. In cases where a mother declines to identify a father she may face persuasion, if that is thought appropriate, but she cannot be coerced. In some cases, the available information may mean that the father is identifiable, and maternal relatives may also be identifiable. The extent to which identifying information is pursued is a matter of judgement. Conversely, there will be cases where it is necessary to consider whether any confidentiality is likely to endure. In the modern world secrets are increasingly difficult to keep and the consequences, particularly for the child and any prospective adopters, of the child's existence being concealed but becoming known to family members later on, sometimes as a result of disclosure by the person seeking confidentiality, should be borne in mind.
The impact of delay. A decision to apply to court and thereafter any decision to notify will inevitably postpone to some extent the time when the child's permanent placement can be confirmed. In most cases, the importance of the issues means that the delay cannot be a predominant factor. There may however be circumstances where delay would have particularly damaging consequences for the mother or for the child; for example, it would undoubtedly need to be taken into account if it would lead to the withdrawal of the child's established carers or to the loss of an especially suitable adoptive placement.
Any other relevant matters. The list of relevant factors is not closed. Mothers may have many reasons for wishing to maintain confidentiality and there may be a wide range of implications for the child, the father and for other relatives. All relevant matters must be considered.
It has rightly been said that the maintenance of confidentiality is exceptional, and highly exceptional where a father has parental responsibility or where there is family life under Article 8. However, exceptionality is not in itself a test or a short cut; rather it is a reflection of the fact that the profound significance of adoption for the child and considerations of fairness to others means that the balance will often fall in favour of notification. But the decision on whether confidentiality should be maintained can only be made by striking a fair balance between the factors that are present in the individual case.
The title of the reported case should not mislead. The principles are applicable equally to applications for non-notification outside of relinquishment for adoption scenarios as explained at §85:
Decisions in this field are taken both by social workers and by courts and the decisions themselves concern both putative fathers and close relatives. Although some aspects of the statutory material and the case law relate to one type of decision-maker rather than another, and some to one type of family member rather than another, there is in my view no reason for any essential difference of approach. On the contrary, there is great benefit in a consistency of approach to the very varied situations that arise. The decision of a social worker within his or her domain is as important as that of the court within its domain. Similarly, there is no automatic hierarchy as between, for example, a putative father and maternal grandparents. In some cases, a notification decision will naturally focus on one or the other, and in some it will focus on both. The factors that govern the outcome will depend on the facts of the case, not on the identity of the relative or of the decision-maker. Nor should the calculus depend upon whether the issue arises within proceedings under the CA 1989, the ACA 2002 or Part 19, or whether the right kind of proceedings have been brought…
I have regard to the decision of MacDonald J. in Bury Metropolitan Council and ML/LN [2022] EWHC 746 (Fam):
The starting point is that a father should be able to participate (in a wide sense) in proceedings concerning his child. The court should start with full participation then consider partial participation and then, only as a divisive last resort, the father’s exclusion from the proceedings.
The court’s task is to identify the nature and extent of the harm in contemplation. The court should be rigorous in its examination of the risk and gravity of the feared harm. The court must be satisfied that the child is likely to suffer harm in the sense of a real possibility that cannot be sensibly ignored having regard to the nature and gravity of the feared harm and in the particular case.
There is no requirement that a significant physical risk be demonstrated. Harm and risk come in many guises.
When evaluating the risk of future harm, there is no minimum requirement. The court must be both alert to the risk and to the magnitude of the consequences should the risk eventuate and must also consider whether and to what extent that risk can be managed by the court’s control of its own processes. The greater the harm, the smaller need be the risk.
The court is not determining a question in respect of the upbringing of the child so the welfare of the child, whilst an important consideration, is not paramount.
Authorities in the Strasbourg jurisdiction put a high bar in excluding a parent with parental responsibility. In this context where a parent has parental responsibility or a right to respect for family life under Article 8, a high degree of exceptionality must be demonstrated by strong counter-veiling factors to justify their exclusion from participation in the proceedings.
It must be remembered that exceptionality is not, in itself, a test or a shortcut and a fair balance must be struck between the factors that are present in the individual case.
Finally, in Re S [2023] EWCA Civ 706 King LJ. observed that:
In my view the presumption in favour of a father being joined to proceedings should not be displaced if the concerns of the other parties can be properly mitigated by the Court making use of the extensive tool kit now available to it in the form of its general case management powers and its powers in relation to vulnerable parties.
Relevant Background
It is unnecessary to relate the full background to this case. I focus on the account given by X in her statement which sets out her rationale for seeking non-notification.
The first thing to make clear is that Y is named on A’s birth certificate and has parental responsibility (PR). Moreover, there is no question that he knows of A’s existence. On X’s account his involvement with A has been minimal with him last seeing her on [ ] 2024 (when she would have been approximately 2-months of age).
It appears Y was arrested on [ ] 2024 and has been held on remand since that date. I am told he faces trial on [ ] 2025.
X records the allegations facing Y in her statement. They include [allegations detailed]. X is the reported victim in each case. I am conscious the allegations against Y extend outside of these charges and there have been in the past a number of reports made by X of abuse including serious sexual abuse of her. I have read her statement and the social worker statement. That statement fairly raises real concerns about ongoing domestic abuse perpetrated by Y, which was reported to the police but then not supported or maintained by X. The concerns of the applicant include the question of domestic abuse in the relationship but also the inconsistent approach of X in such circumstances and the risk this might therefore pose to A both directly and indirectly and both at a physical and emotional level.
It is as a consequence of the above that X asks the Court not to tell Y about the proceedings. She argues this would likely increase the risk to her from him. She reports he has continued to seek to exert control over her from prison by getting a third party to pass on a message to her. X argues Y would use such notice to further harm her and to continue a pattern of control and/or intimidation. She is concerned he would seek to destabilise her placement and this would impact on her mental health and re-traumatise her. She questions what role he could play in the proceedings in any event given his incarceration.
The applicant does not take a positive position but highlights some of the competing factors that must be borne in mind on the facts of this case. The guardian considers Y should be notified. She draws particular attention to the potential outcomes in the case and the need for a full evaluation to be undertaken. X has not filed a response argument. I do not consider this to be particularly material as her argument is fully articulated in her initial skeleton argument and supporting statement.
Discussion
I intend to proceed in this analysis on the basis that the allegations made are true or substantially true and that there has been a high level of serious domestic abuse arising between Y and X. I do so in the knowledge that the criminal process has not completed and that Y has not been found to be guilty of the charges. For the avoidance of doubt proceeding on this basis should not be misconstrued as the Court making findings against Y.
In applications of this sort the Court is inevitably restricted to the account given by the party applying given that a contrary view cannot be obtained from the other individual not served with notice of the proceedings. This is the norm and the Court must approach its task cognisant of this gap in understanding. Here though the facts permit a better understanding with at least a level of independent support for the allegations. There is information from the police and surrounding circumstances including the remand of the father which indicates the allegations are not wholly fanciful or without a level of meaningful support.
I am satisfied these are very serious allegations, including significant controlling and coercive behaviour and violence at a high level [ ]. I appreciate the allegations extend beyond those facing the criminal court. I note X has previously made reports only to withdraw (or not support the same). I do not place significant weight on that given the allegations include coercive behaviour patterns and by implication paint her as a vulnerable individual within the relationship.
Y knows about A. He is on her birth certificate. He has had contact with her and was in a relationship (notwithstanding the above) with X in the early months of her life. That relationship was intersected by his incarceration. His state of knowledge will continue. The issue in this case is not of the risk that will arise were he to become aware that A existed but rather the risk were he to become aware of the proceedings. As such this is not a case in which the Court has to determine the risk of leakage of information as to her existence.
I bear in mind the potentials from the criminal proceedings. Y may be convicted. If this were to be on all counts then it is likely he will receive a lengthy custodial sentence. If he is acquitted then he will be released and will return to the community and his decisions thereafter are a matter of speculation. I am asked to reflect on how his state of knowledge of these proceedings may impact at such a point.
I also bear in mind the potential outcomes within these proceedings. On current directions the court will receive an assessment of X’s ability to care for A and an assessment of a friend to do the same. No family assessments have been sought. Indeed, there has been a degree of uncertainty as to the friend assessment. Given the age of the child a plan of long-term foster care is not likely to be high on the hierarchy of outcomes. The Court may be asked to consider adoption and I have to bear in mind the restriction on possible family alternatives (on the paternal side) that will be lost if notification is not given.
I of course reflect on what the Court might do to protect X were it to disagree with her application.
I could limit the documents shared with the Y.
I could in the first instance simply provide him with notice and require him to indicate within a given period whether (a) he seeks to put himself forward to care; (b) whether he will be seeking contact, and; (c) whether he puts forward any third parties. I could then further consider disclosure on a redacted basis consistent with the answer to these questions
I would undoubtedly maintain confidentiality as to X’s address, indeed general location, including any details which might suggest the same
I could limit Y’s physical attendance at Court. I could require him to attend remotely (this is his only option at this time in any event) and could make ancillary directions to limit even this impact on X.
There may be, indeed are likely to be, other steps which I could tailor to the case to give protection to X.
What I cannot do is modify the impact on X of Y knowing about the proceedings, if this is what I decide. I accept this will be anxiety provoking and may impact broadly and negatively on her presentation and has the potential to impact on the assessments undertaken. Having said that Y will be released from custody at some point and the Court will likely have to grapple with an understanding as to how X will manage that situation when it arises, to include how she will emotionally manage that. In a way proceeding without him may create a certain artificiality in the assessment and leave unanswered the question as to X’s ability to manage care into the future as circumstances change.
I turn to the discrete points noted in A, B and C:
Y has PR. However, this arose it was a decision made early in A’s life. As such he is an automatic party to these proceedings absent a direction discharging him made without notice to him. He has a right to withhold consent to adoption (were that a relevant feature) and would be an automatic party to an adoption application. I do not predict the latter but I must be mindful of potential impacts were that to arise and were the Court no longer able to justify non-notification at that point. I judge the impact on the proceedings and also the attitude of Y towards X of a late discovery has the potential to be highly problematic. In such proceedings X may be unrepresented. I require compelling reasons to make the decision sought.
Y has established Article 8 rights. This is reflected by his entry on her birth certificate and the role, whether limited or not, he had in her early months. This role was terminated by his incarceration but it cannot simply be overlooked. Whilst there may be dual motivations for his communication from custody I note he is expressing a wish to have some involvement in A’s life. Consequent on this he has a right to a fair hearing (Article 6). This is an absolute right the exercise of which can be modified as to form by the Court but strong reasons are required to effectively remove him from the hearing process altogether.
Whilst I have regard to the abuse within the relationship this does not mean this was not a relationship of substance. I proceed on the basis it had strong elements of abuse and as such was unhealthy, indeed dangerous for X and would have been for A as well (whether directly or indirectly). But this is different to the question as to whether as a result Y has a right to have a voice on the issues being placed before the Court . The social work statement indicates the parents met in [ ] 2023 and formed an intimate relationship in the following month. Viewed in this way the relationship had endured for a period in excess of a year or so prior to ending (I do not ignore the multiple events over this year) and A was conceived during a continuing relationship. The position with respect to broader family is far less clear on the information before me. The social worker statement indicates Y is seeking contact with his son and would like [ ] considered to care for A. This strongly suggests he understands the applicant’s role whether he knows of these proceedings.
I have regard to the likelihood of a family placement. At this time there is weight in the submission made by X that Y is not a likely prospective carer. This may be fortified were he to be convicted and receive a significant sentence. I note the suggestion of the paternal grandmother. That is an unknown at this time and may have merit.
I have regard to the suggested impact on X. Indeed, on the facts of this case this is the central ground justifying non-notification. It is clear she has mental health challenges and vulnerabilities. I am mindful of the potential for notification to lead to a deterioration in her mental health wellbeing which may impact her, A, and her prospects in the proceedings. However, as noted above this decision will not bring closure to the potential for risks and undermining behaviours from Y. It may be he will act in a manner calculated or likely to undermine X if he is notified. But he may do so whether notified or not. It appears he is aware of some form of process and could at any point make an application for contact. The Court could not simply ignore or dismiss that. I question how that could be managed without the very same impact raised in support of this application. It may be felt that management of a certain situation may be emotionally less challenging that waiting for an event to occur at any point and in circumstances over which one has no control.
I have not been referred to any particular cultural or religious factors bearing on this decision.
It is always important to ask the question as to how durable the confidentiality is? I have noted from the social work statement that Y has some sense of the potential consideration of alternative carers. This is not far from being informed about these proceedings. Second, were these proceedings to be followed by an application under the 2002 Act then the question would arise again and then in even more heightened emotional circumstances. Finally [ ].
I have regard to delay. We are in week 7 of proceedings. Notification, and consequent assessment may delay the proceedings. However, this need not be significant given the challenges around assessment of the father. Delay may arise later and at a time when it has to be managed in a consecutive not concurrent manner to the existing directions. In any event it may be that this matter can proceed to an effective IRH as listed on [ ] January 2026 given that is [ ] weeks away. If X’s assessment is positive there would be limited grounds for delay to find out the outcome of alternative assessments.
Conclusions
In my judgment Y should be notified of the proceedings. There is a compelling case for notifying him for the reasons given above and I judge the counter-veiling factors can be appropriately managed to successfully reduce risk to a low level. I appreciate this will nonetheless impact on the X but I judge a level of anxiety will remain as Y is aware of the existence of A; has expressed a wish to have some involvement in her life and has some understanding of the applicant’s involvement, meaning he could become involved at any point. I judge it is far better to manage this with clear sight of the issues than to do so in a responsive manner.
This is a case management decision. Any challenge to this decision must be made by 4pm on 19 September 2025. The applicant should upload an order but I will circulate this judgment immediately and time will start to run.
Absent any further action the applicant should provide notice on 22 September. This should be notice only. There should be no broader disclosure. Y should be informed as to the nature of the proceedings and that A remains in the care of his mother who is being assessed. He should be asked as to whether he wishes to engage with the proceedings and if so whether he is suggesting he should be assessed to care for A. He should be asked whether he proposes anyone else be assessed and to give details. He should have 7 days to notify the applicant and should be warned as to the possibility the Court will not conduct an assessment if notice is delayed.
Dependent on these answers the Court may then be asked to consider his role in the proceedings and the form and nature of any disclosure.
His Honour Judge Willans