This is the public children law update blog to give readers a snapshot of the important cases, issues and developments from March 2017 to June 2017. In the last three months, the President of the Family Division has been particularly busy, reviewing how the judiciary should conduct itself with different agencies, as well as grappling again with how English adoption can be implemented with Scottish orders. In this blog, we highlight the developments with notice and service on parents of proceedings and adoption.
Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal developments that are covered or if you think we have missed something that should be brought to the attention of child care law practitioners.
NON-SERVICE ON PARENTS
It is trite law that parents should be served with the papers for issued applications for care proceedings or adoption. For those parents without parental responsibility or closely involved with the child, at least a notice of the application should be given. However, some more examples have appeared for when this requirement can be disapplied.
Notice to father dispensed with because of the risk to mother and child (Re CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34)
The local authority applied for permission to not serve the father with notice of care proceedings concerning his child. The father did not have parental responsibility for the child. The potential consequences of giving notice were that the mother and child would be at risk of physical harm, if the father knew of their whereabouts. The mother claimed that she had moved to escape the father’s abuse and he had previously been able to trace her and send her threatening notes.
HHJ Bellamy dispensed with the requirement to give the father notice. He did so, after determining that Articles 6 and 8 of the European Convention on Human Rights would not be engaged and had balanced the risk that giving notice would put on the mother and child. He identified the following considerations to determine whether family life exists between the child and the father:
- It is a question of fact.
- Family life is not confined to marital relationships.
- Biological ties alone are not sufficient to establish family life.
- Cohabitation is an important factor.
- There must be evidence of a close personal relationship, a demonstrable interest in and commitment to the child.
- Other factors that demonstrate a relationship has sufficient constancy to create a de facto family life.
Service dispensed with because of potential grave danger from tracing the mother (Hillingdon Council v SM and others [2016] EWHC 3658 (Fam))
The local authority applied for a care order in respect of an unaccompanied minor from Afghanistan. The mother’s whereabouts were unknown. Advice was taken from the Foreign and Commonwealth Office, which confirmed that tracing the mother was possible through the Red Cross, but doing so would put her in grave danger of physical harm.
Theis J considered the circumstances to fulfil the very high exceptionality rest before the requirement to serve proceedings papers on a mother could be dispensed with.
Notice of adoption application to a mother should not be dispensed with (A Local Authority v The Mother and Another [2017] EWHC 1515 (Fam))
The mother relinquished the care of her premature baby for fear of being ostracised or killed by her family for giving birth outside of marriage. Holman J dispensed with the requirement to serve the mother with care proceedings and placement order application papers. However, he refused the local authority’s request to dispense with the requirement to serve the mother with notice of any adoption application. This request went too far, because:
- It would contravene the requirement of notice under section 141 of the Adoption and Children Act 2002 (ACA 2002).
- It would contravene the procedural rules made pursuant to section 141 of ACA 2002.
- The LA had been able to communicate with M without endangering her thus far.
- Any adoption may be months later and M’s situation may change.
ADOPTION
Recent cases identify problems in the period between when a placement order has been made and the adoption application being issued. While this period usually involves background work by the social work team to identify a suitable family, place the child and monitor the placement, some issues may arise that requires some legal advice and input.
Do not proceed with placement plan when aware of a prospective application to revoke the placement order (R (EL) v Essex County Council and another [2017] EWHC 1041 (Admin))
The implementation of a placement plan should not be a race between the local authority and a parent issuing an application for permission to apply to revoke a placement order. Charles J criticised Essex County Council for expediting the placement of a child for adoption when it was aware that the mother opposed the placement and was trying to take legal action.
The mother was acting as a litigant in person, without legal advice. The local authority should have taken care to ensure that it acted fairly towards the mother. When the local authority became aware of the mother’s intention, it should have halted the placement of the child. Charles J suggested that local authorities should provide information to parents about their legal options for opposing a placement when it has formulated a placement plan and give the parent a reasonable amount of time.
Informal change of surname for child placed for adoption is unlawful (Re R and E (children) (2017) WL01552445)
Section 28 of the Adoption and Children Act 2002 (ACA 2002) prohibits the changing of a child’s surname, if the child has been placed for adoption. Any change must be court approved. In this case, two children (10 and 12 years old) were placed for adoption and wanted to be known by their prospective adopters’ surname. The prospective adopters asked the local authority for advice on what to do, and were advised that the children could informally change their name at school. The birth father became aware of the children’s informal use of the prospective adopters’ surname and brought a claim for damages against the local authority for allowing the change.
HHJ Meston QC made a declaration that the local authority had breached section 28 of the ACA 2002. The legislation did not make a distinction between an informal or formal change of surname. The change also breached the birth father’s rights under Article 8 of the European Convention on Human Rights. The local authority should have taken positive action to avoid the breach, which could have included some social work sessions with the children to encourage them to wait until the adoption orders were made.
Adoption of a child subject to a Scottish Compulsory Supervision Order (Re A and O (Children: Scotland) [2017] EWHC 1293 (Fam))
Scottish local authorities can place a child, who is subject to a Compulsory Supervision Order (CSO) in England and Wales. The placement can be one for adoption and the prospective adopters can make their application for adoption orders in the Family Court in England and Wales. The adoption application must be made under section 47(2) of ACA 2002 and the birth parents’ consent to adoption must be dispensed with.
When an adoption application involves a child subject to a CSO, the application must be brought to the attention of the designated family judge. The Scottish local authority (as the adoption agency) should be joined as a party before the first directions hearing. The court must consider the forum non conveniens principle. In particular, the parents should be given the opportunity to participate in the proceedings and this may influence whether the English court is the appropriate court to hear the application. The Scottish local authority should be asked to consider funding the parents’ travel and accommodation if the court venue is a difficulty.