Manisha Marwaha and Lorena Veale appear in the High Court Family Division in an application to notify wider family members, in two different countries, of a relinquished child.

Manisha Marwaha and Lorena Veale advised and represented a Local Authority both pre-issue and during proceedings heard before The Honourable Ms Justice Henke. An application was brought by the Local Authority under section 19 of the Children Act 1989 and under the inherent jurisdiction seeking the court’s determination on the issue of notification to wider paternal and maternal family members where there were no other proceedings in place. Prospective adopters had been identified and the child had been relinquished by the parents.

The matter was complicated by the differing nationalities and cultural backgrounds of the parents and further the maternal and paternal family members being located in two different jurisdictions. Little information regarding the setup and background of the respective families had been provided prior to proceedings being issued and despite extensive efforts having been made by the social care team on advice from Counsel.

The parents unusually in a relinquished child case presented as a couple and wished to remain as a couple. Whilst not wishing to notify their respective families due to cultural reasons, both parents sought to engage in letterbox and direct contact with the child, which the prospective adopters were also willing to facilitate. Accordingly concerns were raised by the Local Authority regarding the preservation of confidentiality. There were further material inconsistencies going to relevant factors in the case inherent within the documentation shared by the parents during proceedings. In the circumstances the matter was deemed to be finely balanced and the court’s determination sought at the outset.

In matters such as this it is important to note that where the question concerns notification of family members, no provision within statute, the regulations or rules imposes an absolute duty on either the Local Authority or the court to inform or consult members of the extended family about the existence of a child or the plans for the child’s adoption where either parent states they do not wish for the wider family to be notified; (Re H (Care and Adoption: Assessment of Wider Family) [2019] 2 FLR 33). The ethos of the Children Act 1989 however is plainly supportive of wider family involvement, save where that outcome is not consistent with the child’s welfare.

In the circumstances, the Local Authority and further the court are to exercise a broad judgement on the facts of an individual case, taking into account family circumstances but attaching primacy to the welfare of the child. There is a discretion to be exercised by the Local Authority and by the court as to whether relatives should be notified of the birth of a child. The discretion requires the identification and balancing up of relevant factors.

The tenor of the authorities is that in most cases notification will be appropriate and the absence of notification will be the exception but each case will in the end depend on its facts.

The relevant factors for the court to consider, namely as to whether a putative father or a relative should be informed of the existence of a child who might be adopted, were set out by the Court of Appeal in A, B, C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 41 para 89 [F37-F40]. The relevant principles and factors as set out within A, B and C remain good law and were applied and followed in this matter. When considering A, B and C there is no single test for distinguishing between cases in which notification should and should not be given however; the case-law shows that the following factors will be relevant when reaching a decision:

1. Parental responsibility
2. Article 8 rights of the child and family members
3. The substance of the relationships
4. The likelihood of a family placement being a realistic alternative to adoption
5. 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.
6. Cultural and religious factors – 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 of the child.
7. The availability and durability of the confidential information - 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 result of disclosure by the person seeking confidentiality, should be borne in mind.
8. The impact of delay - In most cases, the importance of the issues means that delay cannot be a predominant factor.
9. Any other relevant matters.

It has rightly been stated that the maintenance of confidentiality is exceptional however, exceptionality is not in itself a test or a short cut; rather it is 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. The decision on whether confidentiality should be maintained  however can only be made by striking a fair balance between the factors that are present in the individual case.

Following further disclosure of pertinent documentation including earlier in time therapy records and when considering and weighing up the above stated relevant factors; clear and robust advice was provided to the Local Authority by our Counsel. In the circumstances and in conjunction with the unequivocal psychological and emotional impact the further disclosure supported the parents facing following any notification; a fair balance was struck. The matter accordingly concluded at final hearing with an order reached by consent, with the court’s full approval, prohibiting notification to both wider and maternal family members.

Manisha and Lorena are both members of our Children and Family Team. Manisha is frequently instructed as leading Counsel in cases involving international family law matters. To instruct Manisha or Lorena, please contact our clerks on clerks@kbwchambers.com.