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Judge criticises local authority and Children's Guardian over efforts to identify birth father but declines to revoke adoption order

A Family Division judge has rejected a birth father’s application under the inherent jurisdiction of the High Court to revoke an adoption order made in November 2019, despite levelling criticisms at the local authority and Children's Guardian over a lack of rigour and urgency to identify him.

In HX v A Local Authority & Ors (Application to Revoke Adoption Order) [2020] EWHC 1287 the birth father's application was supported by the birth mother. However, it was opposed by the local authority, the adoption agency and the Children's Guardian.

The birth father's application to revoke the adoption order in respect of Z was made on 27 April 2020. He relied on the following matters:

"The applicant is adamant that he was not made aware of the proceedings. Firstly, because his daughter who was born in Uganda was removed from Uganda by her mother with his knowledge and ties severed. The father continues to reside in Uganda. There (sic) local authority failed to take adequate steps to locate and notify the father of the proceedings.

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The applicant was unaware of the care or placement proceedings regarding his daughter. After the making of care and placement orders he contacted the court. The Ugandan embassy wrote to the court prior to the permission hearing to express their interest in the case as the child is a Ugandan national.

Father was directed by the court in August 2019 to provide a statement / make representations however father did not have UK representatives at the time and the application for public funding although sought had not been secured in time for the hearing on 6 September 2019 and the application to adjourn the hearing on his behalf was not granted."

Mr Justice MacDonald said the only statutory ground for revocation of an adoption order under the Adoption and Children Act 2002 was not applicable in this case.

The judge said that in determining whether the birth father should succeed in his application to revoke the placement order the following legal principles fell to be considered and applied to the facts of this case:

i) An adoption order effects a change that is, and is intended to be legally permanent. The effect of an adoption order is to extinguish any parental responsibility of the natural parents. Once an adoption order has been made, the adoptive parents stand to one another and the child in precisely the same relationship as if they were his legitimate parents, and the child stands in the same relationship to them as to legitimate parents. Once an adoption order has been made the adopted child ceases to be the child of his previous parent and becomes the child for all purposes of the adopters as though he were their legitimate child.

ii) There are strong public policy reasons for not permitting the revocation of adoption orders once made, grounded in the nature and intended effect of an adoption order but also in the grave damage that would be done to the lifelong commitment of adopters to their adoptive children if there was a possibility of the child, or indeed the parents, subsequently challenging the validity of the order and in the dramatic adverse effect on the number of prospective adopters available if prospective adopters thought that the natural parents could, even in limited circumstances, secure the return of the child after the adoption order was made.

iii) Within this context, the court's discretion under the inherent jurisdiction to revoke a lawfully made adoption order is severely curtailed and can only be exercised in highly exceptional and very particular circumstances.

iv) Those highly exceptional circumstances must comprise more than mistake or misrepresentation or serious injustice and amount to a fundamental breach of natural justice.” (judge’s emphasis)

Mr Justice MacDonald said: “Whilst HHJ Woodward proceeded to determine the care and placement proceedings in 2018 on the basis that all reasonable steps had been taken to identify and locate the birth father, and careful as I am to remind myself that it not for this court to go behind the conclusion reached by HHJ Woodward at that time and on the information then available to her, on the information now available to this court in considering the application to revoke the adoption orders, it is clear that some justified criticism can be levelled at the local authority and the Children's Guardian (who was not at that time Mr Yartey) regarding the sufficiency of the enquiries undertaken to identify and locate the birth father and provide him with notice of the care and placement proceedings.

“In particular, the bold assertion in [counsel for the local authority’s] Skeleton Argument that, in the context of those proceedings, ‘the local authority made repeated efforts to identify the whereabouts of the [birth] father and engage him in some form of assessment’ is entirely unsupported by the evidence.”

The High Court judge added: “Rather, the papers before the court demonstrate a marked lack of rigor and urgency during the care and placement proceedings with respect to the need to ascertain the identity and whereabouts of the birth father and a pre-occupation with the birth mother's account to the exclusion of any efforts by the local authority or the then Children's Guardian independently to ascertain that information.”

By September 2017 the local authority and the Children's Guardian had a birth certificate for Z stating the name of her birth father, a description from the birth mother as to the birth father's occupation which, it transpired, was accurate and a clear indication from the birth mother that the maternal family had been involved in, or were at least aware of, the arrangements for the marriage of the birth mother to the birth father.

“Notwithstanding this, no attempt was made by the local authority or the Children's Guardian to request the Ugandan authorities or the Ugandan High Commission in London to assist in identifying the man named on the birth certificate as 'XH', the birth father asserting in his statement that he is both registered with the Ugandan Ministry of Internal Affairs and holds a Ugandan passport and driving licence. Nor does it appear that the maternal grandmother was ever asked by the local authority or the Children's Guardian to assist by providing any details she could provide regarding the identity and whereabouts of the birth father, named as he was on Z's birth certificate and described as he was by the birth mother.”

The judge said that these would have been "reasonable steps" to take in the circumstances and the fact that such enquiries concerned a foreign national did not absolve the local authority and the Children's Guardian from attempting them independent of the position adopted by the mother.

“Whilst I accept that the local authority and the Children's Guardian will have been given pause by the graphic nature of the birth mother's description of her marriage and the conception of Z, these matters likewise did not absolve the local authority and the Children's Guardian from attempting the enquiries I have outlined,” Mr Justice MacDonald said.

“However, whilst the matters I have outlined above are of concern, having regard to the legal principles that I must apply to the birth father's application to revoke the adoption order I cannot go on to conclude that they represent the type of fundamental breach of natural justice sufficient to justify the revocation of the adoption order.”

This was for the following reasons:

  1. Taken by themselves and having regard to the nature and effect of an adoption order and the strong public interest in not setting aside adoption orders once made, he was unable to conclude that the "regrettable" failure by the local authority and the Children's Guardian to undertake the type of enquiries he had detailed constituted highly exceptional circumstances for the purposes of determining the application to revoke the adoption order. "Each case must be decided on its own facts but, in the context of the deficiencies in the enquiries of the local authority and the Children's Guardian that I have identified, I again note that in Re Webster the fact that the children in that case had been denied the opportunity to argue that they should grow up together with their parents as a family in breach of the Art 8 rights and the fact that the parents had been wrongly accused of physically abusing one of their children and three of their children had been removed wrongly and permanently from their care, did not amount to sufficient justification to revoke the adoption orders made in that case, notwithstanding that the procedure that resulted in the public law orders that preceded that adoption orders was fundamentally flawed."
  2. In any event "and much more fundamentally" in the context of application to revoke the adoption order, Mr Justice MacDonald could not ignore the fact that subsequent to the birth father notifying the court in June 2019 that he sought to care for Z in Uganda the birth father was given notice of the adoption proceedings, was made a party to those proceedings by HHJ Woodward, was given the opportunity by HHJ Woodward to file and serve evidence in those proceedings and the opportunity to participate in the final hearing. "Whilst the birth father now contends that he was not given a proper opportunity to participate in the adoption proceedings to the extent that a fundamental breach of natural justice has occurred, in these circumstances the evidence before the court simply does not bear out that contention."

The judge added: "In the circumstances, even accepting the procedural deficiencies I have identified in the care and placement proceedings, accepting that the difficulties of litigating at a distance may mean that some communications went astray and accepting that litigating at a distance means that additional time was required to take instructions and implement in this jurisdiction, I am satisfied that the position in the adoption proceedings as articulated in the evidence before the court cannot possibly be said to amount to a fundamental breach of natural justice the kind that constitutes the highly exceptional circumstances justifying the exercise the court's discretion to revoke an adoption order."

Mr Justice MacDonald went on to conclude: “In the circumstances, and notwithstanding the criticisms I have levelled at the local authority and the Children's Guardian regarding the steps taken during the care and placement proceedings to identify and locate the birth father, I am not satisfied that the birth father has demonstrated the highly exceptional circumstances grounded in a fundamental breach of natural justice required to justify the High Court revoking an adoption order pursuant to its inherent jurisdiction. In those circumstances, and acknowledging the gravity of the decision and the likely impact of it on the birth father, I dismiss the birth father's application.”

The High Court judge said it was important to reiterate that the requirement for a local authority to take all reasonable steps to identify, locate and give notice to a parent in the context of public law proceedings, and the responsibility on a Children's Guardian to satisfy themselves independent of the local authority that all such reasonable steps have been taken, applies equally to public law proceedings involving parents who may be located in a foreign jurisdiction.

“Whilst what constitutes reasonable steps will depend on particular circumstances of the case, methods exist for obtaining information from foreign jurisdictions on the whereabouts of a child's parent or parents,” he said.

“In the absence of an applicable international instrument to facilitate the exchange of such information between jurisdictions, these methods will also include requesting information from the embassy, High Commission or consulate of the relevant foreign country, seeking information via non-government organisations that provide family tracing services, such as the Red Cross, and making enquiries of other known relatives (always taking care that such enquiries not place the parent in question in danger).”

The judge said that in the context of the principle that children are generally best looked after within their own family, save where that outcome is not consistent with their welfare, and that a care order on a plan for adoption is appropriate only where no other course is possible in the child's interests, “local authorities and Children's Guardians must be astute to avail themselves of these avenues when seeking to demonstrate to the court that all reasonable steps have been taken to identify and locate a parent.”

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