Family Law

Family Law Newsletter #5127.08.21

Guidance / Updates

Report on recommendations for divorce and dissolution costs

Ministry of Justice requests input on expanding mediation

Case Summaries

I-A (Revocation of Adoption Order) [2021] EWCA Civ 1222

In the Court of Appeal (Civil Division): Lord Justice Bean, Lord Justice Baker & Sir Stephen Irwin

-An appeal against an order dismissing an application by the birth mother of three children to revoke an adoption order made in respect of those children.

The two eldest children were born in October 2016 and February 2018. In May 2018, proceedings began in respect of these two children following a discovery that the younger child had sustained a series of fractures. The children were subsequently removed from the parents’ care under interim care orders and placed in foster care. In April 2019 the mother gave birth to her third child who was also placed in foster care under an interim care order.

In June 2019, following findings of fact that the injuries had been inflicted by one of the parents, all three children were made the subject of final care and placement orders. In September 2019, permission to appeal against the making of the orders was refused and in October 2019 an adoption application was filed in respect of the youngest child, followed by the same for the eldest two children in January 2020. The parents sought leave to oppose all three adoptions, but their applications were dismissed. The adoption application was listed for hearing in April 2020 and the mother’s application for an adjournment of the final hearing to allow more time to investigate options of family placements abroad was refused.

The April 2020 adoption application hearing was initially scheduled to take place remotely by telephone due to the COVID-19 pandemic; however, the Court subsequently excused all parties from attending the hearing and dealt with the application on the papers. On 6 April 2020, the Court made an order that it was satisfied that the children’s welfare needs should be paramount and that there was no realistic alternative to adoption that would meet their needs and that nothing else would do. Therefore, the adoption orders were made.

In July 2020, the mother applied under the inherent jurisdiction for the revocation of the care and placement orders made in June 2019 and/or the adoption orders made in April 2020. A number of grounds were relied upon under the general heading of serious procedural irregularity and unfairness, including that the adoption order was arguably made in breach of the principle of the right to a fair hearing and the applicable coronavirus guidance. The mother argued that the circuit judge did not give a good or sufficient reason for refusing the adjournment request and for holding that there was no realistic alternative to adoption. The judge dismissed the mother’s application to revoke the care and placement orders and the adoption orders.

The mother was granted permission to appeal that decision in January 2021 on two grounds, namely that the judge had misdirected himself and/or erred in law in determining that that:

1. Family Procedure Rule 14.16 provided a “knock out blow” to the mother’s application; and,

2. The judge was entitled to excuse her attendance at the final adoption hearing.

At [11], the Court summarised the relevant law, citing s.46(6) Adoption and Children Act 2002, which states that before making an adoption order, the Court must consider whether there should be any arrangements for allowing any person contact with the child and therefore must consider any existing arrangements and obtain the views of the parties to the proceedings. S.141 of the 2002 Act was also cited, which provides that in the case of an application for an adoption order, the procedure rules must require any person who would be related to the child by blood to be notified of the date and place where the application will be heard and of the fact that unless the person wishes or the Court requires, the person need not attend. Paragraph 10 of the President’s Guidance: Listing Final Hearings in Adoption Cases 2018 was also quoted. The guidance states that the requirement to give notice of the final hearing is mandatory and any person given notice has the right to attend and be heard on the question of whether an adoption order should be made.

At [15], the Court referred to HX v A Local Authority and others (Application to Revoke Adoption Order) [2020] EWHC 1287 (Fam), where it was held that the Court’s discretion under the inherent jurisdiction to revoke a lawfully made adoption is ‘severely curtailed and can only be exercised in highly exceptional and very particular circumstances.’

On behalf of the mother, it was submitted that the adoption order had not been made in accordance with the 2002 Act or FPR 14.15 and 14.16. It was argued that the judge did not have the jurisdiction nor power to make a final adoption order on paper without a hearing. It was also contended that no reason was given by the Circuit Judge as to why the hearing could not proceed by telephone and the mother was entitled to be heard on the question of contact irrespective of the fact that she had been refused leave to oppose the making of the adoption order.

On behalf of the local authority, it was submitted that no procedural irregularity had taken place and there was no absolute right of a parent to be present at the final hearing of an adoption application. It was also argued that the Court must have a power to proceed in the absence of a parent because otherwise that parent would be able to delay or even prevent the making of an order and that the Court had powers of active case management which include dealing with the case without the parties needing to attend court. In the alternative, it was submitted that if the Judge’s actions amounted to procedural irregularity, it did not give rise to a fundamental breach of natural justice so as to lead to the revocation of the adoption order.

On behalf of the Guardian, it was submitted that given there were no further issues to be heard, the balance fell in favour of dealing with a case expeditiously and proportionately and that there were no adverse consequences of the Judge’s decision to excuse the mother’s attendance at the hearing.

At [23], it was concluded that the decision to make an adoption order without hearing in the absence of the mother was a procedural irregularity and that the mother was entitled to be present at the hearing. It was stated at [25], that ‘an adoption order must be made at a hearing, not merely by the stroke of the judge’s pen.’ However, at [26], the Court also held that the irregularity did not amount to a fundamental breach of natural justice so as to give the High Court discretion under the inherent jurisdiction to revoke the order. The rationale provided by the Court was that the mother did not have permission to oppose the adoption in any event so there was nothing she could have done to prevent the adoption going through. Furthermore, although the Court was required to consider contact arrangements, the mother was not having direct contact and had not sought permission to make an application for this.

Accordingly, the appeal was dismissed.

Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1222.htm

B (Children), Re [2021] EWCA Civ 1221

In the Court of Appeal (Civil Division): Lady Justice Macur, Lord Justice Bean & Lady Justice King

-An appeal against an order refusing a mother’s application for permission to dispense with the requirement for the local authority to give notice of the proceedings to the child’s biological father.

The appellant was the mother of B, aged nearly 3, and C, aged nearly 5 months. B and C were subject to care proceedings initiated in May 2021 and were in foster care at the time of the appeal. C’s father was party to the proceedings. The mother had asserted that B was conceived with S during one of several incidents of non-consensual sexual intercourse and that S’s reaction on becoming aware of the pregnancy was so abusive, aggressive, and threatening so as to cause her to fear for her and B’s physical safety if he was made aware of the proceedings.

The previous judge accepted that the mother’s evidence should be taken at face value for the purpose of determining her application and observed that the mother’s relationship with S arose in the context of her employment. The relationship between S and the mother was described as “plainly very nasty, very abusive behaviour of its type.” There was also information from the police that revealed cautions in 2004 and 2008 for assault occasioning actual bodily harm and a public order offence on record against S. Furthermore, there were two child concern notifications in 2020 and a reference of domestic abuse in 2011 relating to S. The Judge at first instance had proceeded on the basis that S had no parental responsibility and no relationship with his daughter and that the evidence showed intimidation, control, and sexual exploitation.

However, other than social media texts from S to the mother making threats towards the mother if his wife were to find out about the pregnancy, there was no other evidential corroboration for the mother’s case. It was held by the appeal Court that the principal motivation of these threats appeared to be to ensure that S’s wife was not alerted to the pregnancy. Nothing had occurred following the threats nor had S made any attempt to contact the mother. The Judge at first instance referred themselves to B’s Article 8 rights and her welfare generally and felt that B was living under a “false prospectus regarding her paternity” which was going to be “difficult to maintain as she would appear to be a child of mixed-race heritage.” Therefore, it was concluded that the risk to B and the mother could be managed and that the application to not notify S should be refused.

The mother advanced two grounds of appeal:

1. The Judge had failed to take into consideration the fact that S had not acquired any Article 8 rights regarding family life with B; and

2. The Judge erred in the balancing exercise he performed because: (a) he applied a higher test of exceptionality to justify non-service of form C6A which is unwarranted in the case of a parent without parental authority, (b) he had failed to take into account the interference with the Article 8 rights of the mother and the child, and (c) that he had wrongly assessed the level of risk.

Both the local authority and the Guardian sought to uphold the Judge’s decision on appeal and argued that the Judge did not attribute Article 8 rights to S and consequently did not misdirect himself as to the need for a higher exceptionality before dispensing with the need to serve S with notice of proceedings. It was also submitted that the balancing exercise was conducted correctly, and the determination reached was reasonable in all circumstances.

At [18], the case of Re A Local Authority v B (Dispensing with Service) [2020] EWHC 274 was cited, where it was held that ‘where a parent has parental responsibility or a right to respect for family life, a high degree of exceptionality must be demonstrated by strong countervailing factors to justify their exclusion from participation in proceedings’ but 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.’

The case of Re X (a Child) (Care Proceedings: Notice to Father without Parental Responsibility) [2017] 4 WLR 110 was also referenced at [21], where it was concluded that for the children involved in cases such as this one it is important that attempts are made to engage with the birth father and perhaps also his wider family as it will normally be in the interests of the child for their birth father to be informed of their existence and given the opportunity to participate in proceedings. However, it was also held that the child and the mother should not be put at risk of harm as a result of seeking to engage the father in proceedings and that it was a matter of balance.

At [25] the Court concluded that the Judge was entitled to view the nature of the threats in terms of the context in which the threats were made, the terms that were used, the motive behind them and the absence of any subsequent behaviour. The mother’s Article 8 rights were not ignored but the reality was that those family ties were already the subject of state intervention. The Court’s ultimate determination was whether the care order which the local authority sought was a proportionate response to the circumstances affecting B and C. B’s prospective family ties in the circumstances of her knowledge of her paternity and mixed heritage called for greater regard and were key factors for attempting to engage S in proceedings.

The appeal was accordingly dismissed.

Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1221.html