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Judge considers whether local authority obliged to assess members of ‘original family’ of mother who herself was adopted

A Family Court judge has issued a ruling on whether, within public law proceedings, there was any obligation on a local authority to assess members of the biological/birth family of the mother of the subject infant child, where the mother herself was adopted as a child and raised by adoptive parents.

The case of F, Re (Assessment of Birth Family) [2021] EWFC 31 concerns a 15-month-old girl who is currently in foster care and has been for six months.

F has had regular contact with her mother, and with her maternal grandparents, Mr M and Ms N, who adopted the mother in 2008 when she was six.

The first four years of the mother’s life had been in the care of her birth mother (and so the judge believed) birth father. These were said to be “turbulent” years in which the mother suffered “significant neglect”.

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Within the last few days before the hearing, the local authority had given notice of its plan for F to return to the care of her mother in a highly supported community setting, where it is intended that the mother will receive intensive therapeutic support to address her mental ill-health and emotionally unstable personality disorder.

Difficulties had emerged with the mother’s adoptive placement with Mr and Mrs N when she was 13. These intensified when she reached out to her birth mother. The placement subsequently broke down and the mother was accommodated in foster care.

In 2019 the mother visited her birth family, over several weekends, and on one occasion was said to have stayed for approximately one month. It was during one of the visits that the mother discovered that she was pregnant.

The mother said the response to her discovering she was pregnant was “extremely negative. I was not supported at all”.

After F was born, the mother took her to visit her birth family. However, during the visit, F fell out of her pram and sustained a fractured skull, which resulted in her being admitted to hospital. It was only through the actions of a nearby shopkeeper who had observed the incident on CCTV that the emergency services were notified.

Following a deterioration in the mother's home living conditions over the summer of 2020, a decline in her mental health (leading to an overdose), and her engagement in a relationship with a partner who was abusive to her, F was accommodated in September 2020. Proceedings were issued some weeks later.

In the course of the public law proceedings, the mother was assessed by the local authority for her capacity to care for F; the assessment had some worrying features but was cautiously positive, the judge noted.

The local authority had approached other family members to assess their willingness to offer a home to F. Mr and Mrs N felt they could not do so. A maternal aunt also declined to be assessed. The mother’s former foster carers are currently being assessed.

It was in this context that the unnamed local authority issued an application under Part 18 Family Procedure Rules 2010 seeking determination of the single issue on whether it should assess members of the mother’s ‘original family’. The mother was strongly opposed to such a move.

Mr Justice Cobb considered the single issue at a short case management hearing. Given its significance to the future planning of the case, he reserved judgment for a short time to consider the arguments and the caselaw.

At the start of his judgment, he said: “For the reasons set out in this judgment, and on the particular facts of this case, I am of the view that the local authority is under no obligation to assess members of the mother's original / birth family.

“For those reading this judgment searching for statements of wider application, I would say that the answer to the question posed above in any given case will depend to a very great extent on the individual facts and circumstances of that case, taking account of the guidance offered:

i) by the Court of Appeal in an analogous situation involving notification of wider family of a baby who a mother/parent wishes to relinquish for adoption (Re A, B, C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 41) ('Re A, B, C')


ii) in a previous decision of mine, concerning family assessment more generally, namely Re H (Care and Adoption Assessment of Wider Family) [2019] EWFC 10 ('Re H').”

Mr Justice Cobb later concluded:

“29. I  am satisfied that the mother's birth family are her 'original' family (as per ACA 2002) but are not her current 'family' nor are they her 'relatives' as those terms are used in Part III of the CA 1989. In that respect, their status (if any) in relation to F is materially different from the status of the extended or wider family as discussed in the caselaw referred to above, namely Re A, B, C and Re H. Furthermore, the birth family's limited experience of F during a short visit in March 2020 (which culminated in a section 47 investigation as a result of the serious injury to F) falls a long way short of supporting any finding that they had acquired Article 8 rights to a family life with F. This right is not established on the basis of biological kinship alone.

30. Even if the birth family could bring themselves within the definition of 'family' for the purposes of the statute/caselaw, this does not place upon the local authority any obligation under statute to inform, consult, assess, or otherwise consider them in circumstances such as these (see [21]/[22]/[23] above). In that regard, I have assessed what the mother says about her birth family and have done so objectively and critically. In this context, I have been able to undertake the necessary 'analysis' of their potential as 'realistic options' as long-term carers of F at this stage, without undertaking or commissioning a fully-fledged 'assessment' (see Re JL & AO at §92(2)). On the evidence presented, there are at least four clear pointers steering away from the birth family as a realistic option to care for F: (a) the fact of the mother's adoption 14 years ago following her upbringing characterised by turbulence and significant neglect (see [6] above); (b) the events surrounding the injury to F in March 2020, and their failure to report the same (see [9] above); (c) the accepted fact that the mother and her birth mother have a difficult relationship (see [12] above), and (d) the current view of the professionals that the mother should avoid contact with her family (see [9] above).

31. Quite apart from those considerations, I accept that the mother has a strong opposition to the birth family being assessed; this carries significant weight in my assessment (see Re A, B, C at §89(6)(5), Re JL & AO at §50, Re H at §37). In this case, I am further satisfied that involving the birth family in assessment would be likely to have a deleterious effect on the mother's fragile mental health, at a critical time when she herself is being assessed in the community as a long-term carer for her daughter. It would also, I am satisfied, cause unwelcome and avoidable division in the relationship between the mother and her parents (Mr M and Ms N).

32. I should add that I could see a situation in which a birth family could properly fall to be assessed in circumstances such as these, where for instance the previously adopted parent (the mother or father of the subject child) had re-connected successfully with his/her birth family, and this had been a wholesome and successful reunion. But that is plainly not the case here.” [Judge's emphasis]

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