DL (appointment of Guardian and Art 37 Vienna Convention), Re [2017] EWFC B14 (04 April 2017)

HTML VERSION OF JUDGMENT ____________________ Crown Copyright © HER HONOUR JUDGE CAROL ATKINSON : DL was born in this country on 5 th March 2016. Her mother ("M") is a Romanian national. She came to this jurisdiction in June 2015. M only discovered that she was pregnant at 39 weeks' gestation, a week before DL was born. M relinquished the care of DL following her birth and signed agreements pursuant to ss.19 and s.20 Adoption and Children Act 2002 giving her consent to the placement of the DL with prospective adopters and giving her advanced consent to the making of an adoption order. DL was placed in foster care upon discharge from hospital. DL then moved to a foster to adopt placement on 20 th May 2016 with her prospective adopters (Mr and Mrs A), where she has remained to date. Mr and Mrs A were formally matched with DL in July 2016 and have been assessed as being able to meet her needs throughout her childhood and beyond. M is 'not fully sure' who DL's father is. She has provided the name of a putative father – GM. He too is Romanian and remains there. M left Romania in June and DL was born in March, so there would be a narrow window for F to be DL's father. M has not named him on the birth certificate. Therefore he is not confirmed as DL's father and does not have parental responsibility for her. M does not want the LA to contact GM. She told the author of the report that ' he wasn't a very good man a nd he has moved on and has a new family and wouldn't accept the baby ' [ Annex A, p.10 ]. No contact details have been provided for F. In addition, M does not wish the Romanian authorities to be contacted fearing that if they are contacted then her own family will be alerted to the pregnancy. She has told the author of the report that her family would not be happy about her pregnancy as they will be "ashamed of her and would not want to accept DL" . This would result, she says in her, the mother being ostracised. The application before me is the first directions in the adoption application made by Mr and Mrs A. The issues for this hearing were set out in the order listing the matter before me as follows: a. Whether to provide the putative father, GM, or members of the mother's extended family with notice of this application; b. Whether notice should be given to the Romanian consulate of these proceedings; c. Directions towards final hearing. At this hearing I have Counsel for the LA adoption agency, and, unusually, solicitor for the child. In preparation for the consideration of these issues and because of the unusual nature of the requests as to limited disclosure the DJ gatekeeping this case made a direction that a Guardian should be appointed to represent DL within these proceedings. This has important consequences as set out below. I also have the mother here. She was served with the proceedings as she has not signed any formal document requesting that she should not be notified. She has been able to confirm much of the detail set out above. This has been an emotional and difficult hearing for her but she is absolutely clear that her decisions and the manner in which she invites the court to proceed are in the best interests of her child. Notice to Father The father, if he is the father, is not on the child's birth certificate and has no parental responsibility for DL. He has no automatic right to be a party. Should he be served? The mother's position is clear. She does not wish for the putative father or members of the extended family to be notified of this application. I make no assumptions as to whether he is a good man or not. However, the position she takes is one which has been recognised by the courts as legitimate. As Holman J observed in Z County Council v R [2001] 1 FLR 365 : "Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgment, a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies …. There is, in my judgment, a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes. This proposition has been endorsed by the Court of Appeal in Re C v XYZ County Council [2007] EWCA Civ 1206 [2008] 1 FLR 1294 . In that case, a teenage mother who became pregnant after a one-night stand gave up her baby for adoption, refused to identify the father, and indicated that she did not believe that her family could care for the child. Reversing the directions given to the Guardian that she should take steps to identify the father, Arden LJ made the following observations at paras 41-3: "41. I accept the submission of the local authority that the court or adoption agency cannot simply act on what the mother says. It has to examine what she says critically. It is a question of judgment whether what the mother says needs to be checked or corroborated. 42. The local authority goes on to say that the ordinary rule should be that the near family and father should be identified and informed unless the court is satisfied that such inquiries would be inappropriate. The local authority submits that there is a growing trend towards involving the natural family and the father in such cases. It is no doubt true to say that there are a substantial number of cases where a child who would otherwise be placed for adoption is offered long term care by a member of the family. 43. I do not consider that this court should require a preference to be given as a matter of policy to the natural family of a child. Section 1 does not impose any such policy. Rather, it requires the interests of the child to be considered. That must mean the child as an individual. In some cases, the birth tie will be very important, especially where the child is of an age to understand what is happening or where there are ethnic or cultural or religious reasons for keeping the child in the birth family. Where a child has never lived with her birth family, and is too young to understand what is going on, that argument must be weaker. In my judgment, in a case such as this, it is (absent any application by any member of the family, which succeeds) overtaken by the need to find the child a permanent home as soon as that can be done." This issue was picked up more recently by Baker J in Re JL and AO (Babies Relinquished for Adoption) [2016] EWHC 440 . Referring to the authorities above he said this: "These authorities demonstrate that in such cases the wishes and feelings of the parents are likely to carry significant weight in the evaluation of the child's welfare. But they are not invariably decisive. As a result, the local authority cannot give any guarantee that it will keep the existence of the baby confidential. Each case will turn on its own facts. In some cases, an analysis of the circumstances will lead the local authority to conclude that it is unnecessary to inform the natural family, but in other cases the authority will decide that it must consult the extended family in order to carry out the necessary evaluation of the realistic options. Each case turns on its own facts, but the child's welfare will always be the paramount consideration' The Mother has been extremely clear that she does not want the extended family informed of this application. Her reasons have been set out fully by her and confirmed to me in this hearing. She is clear that notification of either the father or her extended family will bring no benefits for this child and indeed even if, contrary to her expectations, it brought a member of the paternal extended family willing to care for DL that would be tempered by the manner in which she would nevertheless be treated as a result of what her family would consider to be her shameful behaviour. There has been a critical examination of that position by the author of the Annex A report and nothing has arisen to cause the adoption agency any concern that what she says is without foundation. DL is a baby and was born in this country and so her links to Romania are very limited. For her the most significant people in her life have been Mr and Mrs A as they have cared for her almost from birth. She is now almost a year old and has an ever pressing need for permanence and that can only be achieved through a decision in this court. Having critically examined the circumstances here with an eye to the forthcoming welfare analysis set out in the Adoption and Children Act 2002, I see no basis for making further enquiries about the father so that he can be served. For the same reasons, neither do I consider it necessary to seek further information with regard to extended maternal family. That brings me to the necessity to involve the Romanian Consulate. Notice to Romanian Consulate It was intended that this hearing would consider the issue as to whether the Romanian Consulate should be notified of these proceedings. Although DL was born in this country, she was born of (probably) two Romanian nationals. I have been referred to other parts of the judgment of Baker J in Re JL and AO (Babies Relinquished for Adoption) [2016] EWHC 440 . That case also involved a relinquished child of foreign nationals and consideration was given to the obligations imposed by the Vienna Convention on Consular Relations 1963 when it comes to the notification of the relevant consular authorities. Articles 36 and 37 were in point. I do not intend to recite those provisions in full here. Suffice to repeat the reminder given by Baker J in that Judgment at paragraph 59: "59. The significance of these provisions to family proceedings was not appreciated until the decision of Sir James Munby, President of the Family Division, in Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam) . The President (at para 41) identified three points to be borne in mind in the context of care proceedings under Part IV of the Children Act 1989. "(i) First, Article 36 enshrines the principle that consular officers of foreign states shall be free to communicate with and have access to their nationals, just as nationals of foreign states shall be free to communicate with and have access to their consular officers. (ii) Second, the various obligations and rights referred to in paragraphs (b) and (c) of Article 36(1) apply whenever a foreign national is "detained"; and where a foreign national is detained the "competent authorities" in this country have the obligations referred to in paragraph (b). (iii) Third, Article 37(b) applies whenever a "guardian" is to be appointed for a minor or other foreign national who lacks full capacity. And Article 37(b) imposes a particular "duty" on the "competent authorities" in such a case." Baker J gave consideration to whether or not it was necessary to give notice in circumstances in which a child of foreign nationals had been relinquished. He was of the view that there was a distinction to be drawn between a child who had been "relinquished" by a parent for adoption and a child taken into care by a public body. In the case of the former he considered that there was no "detention" such that notification of the appropriate consular officials would become an obligation. The same applies here: Article 36 does not apply. He went on to observe, however, at paragraph 68 of the Judgment: "68. ……. in circumstances where the child is joined as a party to proceedings, as summarised in FPR rule 14.1, a guardian will be appointed under rule 16.3. In practice, this includes all applications for placement orders, all applications for orders under s.84 and certain applications for adoption orders, including cases where a CAFCASS child and family reporter recommends that the child be a party and the court accepts that recommendation. Following the guidance of the President in Re E reiterated in Re CB , the court is under an obligation under Article 37 to notify the consular authorities when a guardian is appointed even in those cases where no obligation arises under Article 36 ." [my emphasis added] In this case, as I have already set out, the court appointed a Guardian to represent DL within this application. By that means it has apparently already determined the issue because with that appointment comes the obligation to inform the relevant Consulate. This cannot have been the intention of the DJ making the order appointing the Guardian. Indeed he went on to direct that the Romanian authorities "must NOT be notified of the proceedings until the matter is considered by a Judge". The Local Authority has not yet notified the Romanian authorities, but invites me to set aside the direction appointing the Guardian as it must have been made in ignorance of its effect. I agree. The order making the child a party and appointing a Guardian was made under FPR 2010 Rule 14.3(2)(b). As there was no application that a Guardian be appointed this order was made of the court's own motion pursuant to FPR 2010 rule 4.3(4). Accordingly, I am satisfied that I am empowered pursuant to FPR 2010 rule 4.3(5) to set aside the order appointing a Guardian at the invitation of the local authority and the mother, both of whom are affected by the order and were unable to make submissions before it was made. I have invited the view of the children's solicitor on this issue although I am not sure as to whether she would technically have locus. Nevertheless, and for the record her view is in the unique circumstances of this case that it seems sensible to set the direction aside. That is what I intend to do. It is clear to me that the DJ did not intend the consequences which flowed from the joining of the child and appointment of a Guardian. Having set that direction aside I will now turn to consider whether I should exercise my discretion to invite the LA to notify the Romanian Consulate. For the same reasons that I consider it unnecessary to notify the father and extended family I do not consider it necessary or in the welfare interests of this child to notify the Consulate. Directions This matter can now be listed for a final hearing on the adoption. Postscript At the subsequent hearing on 4 th April when this Judgment was handed down I made a final adoption order in respect of DL in favour of Mr and Mrs A. In a separate Judgment I recorded that, having considered the provisions of the Adoption and Children Act 2002 and in particular the welfare checklist in s.1(4) of that Act, I was entirely satisfied from my reading of the Annex A report that DL's welfare throughout her life required me to make an adoption order. I had no hesitation in making an adoption order. I commended the prospective adopters for their devotion to DL and wanted also to assure the mother that DL was already very be happy and settled in her new family. In the fullness of time DL will come to learn that her birth mother made the decision she did to place her in an alternative family for no other reason than her love for her and her wish to secure her welfare. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII