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Judge rules out notifying consular authorities of adoption proceedings in "unusual case"

A High Court judge has ruled out joining a relinquished child and seeking the assistance of the Romanian consular authorities to track the father down.

In The Prospective Adopters v The Mother & Anor (Rev 1) [2021] EWHC 91 (Fam) Mrs Justice Lieven, sitting in the Family Division of the High Court, described the case as "unusual" after considering the circumstances and deciding not to notify the Romanian authorities.

The 'Applicants' in the case had applied for an adoption order under s.46 of the Adoption and Children Act 2002 (ACA) in respect of a baby boy (AK). As part of the application, the adoptive parents asked for a declaration that the local authority would not be required by the Court to notify the Romanian Central Authority of the proceedings or to seek its assistance in identifying the birth father and wider family.

AK was born in the UK in April 2020 to a Romanian mother who had fled her home country to keep her pregnancy a secret from her father. 'The Mother', a member of the Roma community, told local authority social workers she had to leave because her father would 'shave her head and be violent to her' if he found she had a baby in her circumstances.

AK's biological father left the Mother after she told him she was pregnant. According to the Mother, he wanted her to have a termination, but she was too far into the pregnancy to have a legal termination in Romania. The father then made clear to her he wanted nothing to do with the baby. He ended the relationship and started a relationship with another woman to whom he is now married with a young baby.

At eight months pregnant, the Mother chose to come to the UK to give birth and relinquish the baby. She spent one night with AK in hospital before placing him in foster care. AK later moved from foster care to live with the Applicants.

The Mother's version was entirely supported by her own mother, Ms G, who travelled to England with her when she was pregnant and supported her through the birth and the adoption process. They concealed the pregnancy from other members of the family who live in England, including the Mother's aunt who lives close by.

The Mother consistently refused to give any details either of the father, or her wider family. It had therefore not been possible for the local authority to contact them or make any investigations in respect of them. The Mother was clear that she wished AK to be adopted by a family in the UK and to be given a loving home by them.

In her judgment Mrs Justice Lieven said the case raised to inter-related questions:

"a) Whether the Local Authority is under a legal obligation to notify the Romanian Central Authority of these proceedings; and

b) Even if the Local Authority is under no such formal obligation, whether any inquiries should be made of the Romanian Central Authority in order to seek their assistance in identifying the birth father and wider family as well as conducting any assessments."

On the first question – notification of the consular authorities – the judge acknowledged the obligation to notify consular authorities in certain prescribed circumstances stems from Articles 36 and 37 of the Vienna Convention.

Mrs Justice Lieven went on to consider Re ABC (Adoption: Notification of Fathers and Relatives) [2020] 3 WLR 35 in which the Court of Appeal examined three cases where the mothers had concealed their pregnancies and did not wish the fathers to know of the births.

She said: "Peter Jackson LJ, who gave the only judgment, set out the balance to be undertaken between the various interests involved. In relation to whether the child is joined as a party at [88(2)] the judge said: 'directions should be given on issue joining the child as a party and appointing a CAFCASS officer to act as the children's guardian in the application'.

"However, this passage was taken from an agreed statement between the parties and there is no discussion in the judgment as to whether it would always be necessary to join the child. The opening words of [88] simply says these matters will "require attention". It therefore appears to me that the Court of Appeal was not intending to set in place a requirement in all cases, where such issues arose, that the child should be joined. If the Court of Appeal had meant to create such a requirement then I have no doubt that they would have set out their reasoning and conclusions on that issue in clear terms."

Mrs Justice Lieven said: "It follows from what is set out above that there is no legal obligation for the child to be joined and thus no obligation to notify under Article 37. That conclusion however brings one to the second issue, whether it is appropriate on the facts of the case to notify the consular authorities, or, which will have the same result, to join the child as a matter of the Court's discretion?"

Turning to the second issue identified – discretion to notify the consular authorities – the judge decided it was in the "best interest" of AK and the Mother to not notify the Romanian authorities of the baby.

The judge took into account the father's lack of parental responsibility under English Law. Even if the father had responsibility under Romanian law "he would still not be treated as a parent within the ACA 2002," Mrs Justice Lieven said. "He has not acquired parental responsibility under either section 2 or 4 of the Children Act 1989." 

Mrs Justice Lieven noted that the Mother's account had been consistent throughout and appeared to be supported by Ms G and the surrounding circumstances. “The Mother and Father had a relatively short relationship and, according to the Mother, the Father has made absolutely clear that he does not wish to have a relationship with, or responsibility for, the child. There is therefore no established family life between them.”

The judge accepted what she had been told about the Mother's fear of her own father if he knew about the child, and of being rejected by her community. “She has made very considerable efforts to keep the birth from her wider family and to ensure the child is brought up in the UK. Again, this is supported by Ms G who has indicated that she does not know of any members of the family would be able to look after AK.”

The judge also considered the effect on the Mother if notification were given, the likelihood of the biological father's family being an alternative to adoption, cultural and religious factors, the availability and durability of the confidential information and the impact of delay before making her decision.

Concluding the judgment, Mrs Justice Lieven said: "As set out in ABC I have to consider all these factors together in a holistic assessment. In my view the factors here point strongly in favour of not joining the child and not seeking the assistance of the Romanian authorities to find the Father and the wider family. The Father does not have parental responsibility in English law. The evidence strongly suggests that he would not wish to care for the child and that there is little likelihood of the Mother's wider family wishing to do so. The Mother is in genuine fear of her family finding out about the birth and I accept it would cause real distress and possibly very serious consequences if they did find out. It might well be that even if the Romanian authorities were notified, they would not be able to find the Father in any event. Balanced against all those factors is that the fact that AK has a loving home in the UK, and it is clearly in his best interests for court proceedings not to be delayed. Therefore, on the first reason for notifying the Romanian authorities I consider this to be a clear cut case where it would not be appropriate to notify and there is no good reason to join the child as a party.”

She added: "I turn to the second reason for notification, namely to invite the Romanian Central Authority's view on placement and whether proceedings should be transferred to Romania. I am more concerned about this reason than was the Local Authority. It must be remembered that AK is a Romanian citizen and is not a British citizen. Although there is no duty under the Vienna Convention to notify, for the reasons set out above, that does not mean that the Court can simply ignore the fact that it would be making an order about a foreign national without the relevant authorities of that state being informed. As Baker J made clear in Re JL there remains a discretion to notify where the Vienna Convention does not require it.

"In my view, it will be the unusual case where a court would choose not to notify the relevant authorities of the other state where a foreign child is in the process of adoption. In effect, here the citizen of one country is going through a process by which he will become a citizen of another country, in circumstances where he is too young to express a view, and the first country is not being informed. However, I accept that this is an unusual case. AK is unable to express any view on the situation. For the reasons I have set out above, I consider it to be both in his best interests and those of the Mother, that the Romanian authorities are not notified because of the risk to the Mother, the lack of benefit to AK from doing so and the inevitable and possibly prolonged delay. For those reasons, I will exercise my discretion not to notify the Romanian consular authorities."

Adam Carey

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