There may be a number of reasons why a parent may wish to relinquish their child for adoption. In certain religious or cultural backgrounds today, for example, it is still seen as immoral for a child to be born out of wedlock. When this does happen, the mother may be at risk of being a victim of ostracism, shame or, in some cases, honour-based violence. On the other hand, a mother may simply feel that she isn’t ready for a child, perhaps for financial reasons. The child may have been conceived from a rape, or perhaps the parents suffer from mental ill-health and wouldn’t be able to meet the child’s needs.
When a parent consents to their child being placed for adoption under s.19 of the Adoption and Children Act 2002, a difficulty arises in that the Court must be sure that both parents consented and that there is no one in the wider family who would be suitable to care for the child as adoption should generally be seen as a last resort. Therefore a duty arises for those people to be informed before adoption can be considered, but if a mother has concealed her pregnancy and wishes to have the child adopted to avoid the above risks, this poses problems.
This article will cover the relevant case law for a mother wishing to dispense with the duty to notify the father and/or wider family of a child’s birth and will explore instances where the mother alleges domestic abuse, familial breakdown or significant cultural/religious factors which influence her decision. There are a plethora of reasons for wishing to retain anonymity, and this article is non-exhaustive.
The Case Law
Re A and B and C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 41
The leading case law generally for dispensing with the duty to notify fathers and/or other relatives comes in the form of Re A and B and C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 41. This concerned three appeals against the Court’s earlier decision to maintain confidentiality. The mothers in each case had varying reasons for wishing to keep the birth of their children a secret, ranging from mental health, to the child’s conception being the product of a rape, to fear of honour-based violence. From these three appeals, the Court of Appeal set out a list of factors to be considered before the Court could make a decision:
- Parental responsibility – if a father has parental responsibility, he is entitled to give or withhold consent to adoption and he automatically would be granted party status in proceedings which may lead to adoption, so of course in this instance he should be notified;
- Article 8 rights – whether the father or a relative of the child has an established or potential family life with the mother or child, the right to a fair hearing is engaged and there has to be a very good reason why withholding notification would be justified;
- The substance of the relationships – the Court should consider the relationship between the parents, the circumstances surrounding the conception and the significance of relatives.
- The likelihood of a family placement being a realistic alternative to adoption – it is generally deemed that it would be in the child’s best interests for them to remain living with their own family, and so the Court will consider whether a family placement is likely to be worth investigating before deciding whether the child’s birth should remain confidential;
- The physical, psychological or social impact on the mother or on others of notification being given – the Court gave examples of fear by the mother arising from rape or violence, or the risk of ostracism or family breakdown being valid arguments in favour of maintaining confidentiality. However, the Court also specified that ‘short term difficulties’ or ‘less serious situations involving embarrassment or social unpleasantness’ would not be sufficient;
- Cultural and religious factors – Conception of a child may give rise to particular difficulties in some cultural or religious contexts and may enhance the risks of notification. It’s not uncommon in major religions i.e. Christianity or Islam for a child born out of wedlock to be seen as a sin, and depending on the piety of the family it could have severe consequences for the mother including honour-based violence;
- The availability and durability of the confidential information – in cases where the mother declines to identify a father she cannot be coerced to identify him. The Judge noted that in the modern world, secrets are increasingly difficult to keep, and that the Court should consider the risks of the father or family members becoming later on that a child has been born and subsequently adopted;
- The impact of the delay – in the majority of cases, the importance of the issues means that delay cannot be a predominant factor. However, there may be circumstances where delay would have damaging consequences for the mother or for the child – an example being if the delay caused the child’s established carers to withdraw; and
- Any other relevant matters – this was deliberately kept vague as the Court recognized that mothers may have a number of reasons for wishing to maintain confidentiality and that all relevant matters must be considered.
Given the sheer amount of factors to be considered before the Court can make a decision, it’s clear that there is no ‘one size fits all’ approach when determining whether to maintain confidentiality, and the Court must look at each case individually to assess the impact of informing the father or wider family. The question then arises as to how the Courts have treated cases whereby the primary reason for seeking to maintain confidentiality is that the mother (or both parents) fear cultural/religious implications.
Maintaining Confidentiality – Domestic Violence
In Re A (Relinquished Baby: Risk of Domestic Abuse) [2018] EWHC 1981 (Fam) the Local Authority applied to dispense with the duty to inform the father about the child’s birth. The relationship had only been brief but resulted in the conception of A, and the mother left the relationship due to domestically abusive behaviour, which he continued beyond the relationship in the form of harassment and threats to kill conveyed via social media. The father also had a history of ignoring court orders and abusing both his mother and former partners. The Local Authority applied for permission not to notify the father as to the child’s birth on the basis that to inform him would lead to a high risk of significant domestic abuse. The Court allowed the application due to the degree of corroborative evidence available. Although this case predated Re A and B and C, it is still helpful to consider as a wealth of evidence to back up a claim of domestic abuse may convince the Court to retain anonymity.
A difficulty which arises in instances where the mother alleges domestic abuse is that it is often the case that the abused party, through no fault of their own, does not report the domestic abuse at the time it is occurring. In these cases, the only account which can be scrutinised is the mother’s in isolation and there would be no chance to hear the alleged pepetrator’s side. There is currently no guidance as to how a mother’s account should be assessed in these circumstances, though it should be noted that the Court may require written or oral evidence from her.
Maintaining Confidentiality – Family Breakdown
In A Local Authority v MB and Others [2024] EWHC 1779 the mother’s case was that she’d conceived a child through artificial insemination without her husband’s knowledge to help a family friend who was unable to conceive (interestingly, the mother was unable to identify the fertility clinic used or the friend she was assisting). The husband became aware shortly before the birth and the two agreed that they did not want their wider family, including their two young children, to know of the child’s birth. The Court determined in this instance that if the two other children were to know about the child’s birth it would cause them confusion and upset, and that for the sake of avoiding family breakdown the application was accepted.
Interestingly, in A Local Authority v EL and Others [2020] EWHC 3140, the mother admitted to the Court that the child’s conception was the result of a ‘one night stand’ in London and that she did not want her husband or her family in Poland to be notified of the child’s birth. Her reasoning for wanting to retain anonymity is that the discovery of the child’s birth would lead to the breakdown of her marriage and her four other children’s family lives would be “decimated beyond repair.” The Court allowed the application on those grounds. It would appear that, where there are older children involved, the Court is more likely to take the view that the discovery of the new child could disrupt the status quo and cause breakdown to family lives enjoyed by those children, and therefore the baby’s birth should be kept a confidential.
Maintaining Confidentiality – Religious/Cultural Significance
Prior to Re A and B and C, the case of Birmingham City Council v S, R and A [2006] EWHC 3065 (Fam) the Courts made it clear that religion was not a valid excuse for hiding the birth of a child from the family. In this case the father did not want his Muslim parents to be made aware of the birth of his daughter who was subject of care proceedings. He sought an order forbidding the LA and the Guardian from informing his family. The Court refused and said that “To deprive a significant member of the wider family of the information that the child exists who might otherwise be adopted, it is a fundamental step that can only be justified on cogent and compelling grounds. I find that there are no such compelling grounds here. The Court would wish to preserve the father’s position within his own family, and to avoid upset to him and them, if that is in A’s best interests and her rights to permit it. Here for reasons I have endeavoured to give I am satisfied it is not.” Despite the Court refusing the application, it did open a dialogue about whether the child’s best interests would be met if their birth remained a secret. In this case, the Court couldn’t find that the paternal grandparents finding out would be against the child’s best interest, even if it meant embarrassment for the father when his parents found out!
In A Mother v a Local Authority and Another [2024] EWHC 1747 (Fam) the mother concealed her pregnancy and received no antenatal care due to concerns that she would be subject to honour-based violence from her father. In this instance the Judge held that, despite finding in the proceedings that the maternal grandfather had never beaten the mother before, the fear the mother had of violence from him and his strongly held religious and cultural beliefs were enough to justify keeping the birth of a child a secret.
So far it had appeared that the Court will generally take the view that simple awkwardness or embarrassment is not sufficient, and that honour-based violence is the threshold for maintaining confidentiality, but the case of A Local Authority and PQ and R and S (Through their Children’s Guardian Kayleigh Jennings) [2023] EWHC 1971 (Fam) was arguably the first step away from this onerous requirement. In this case, the mother lived with her parents and siblings in a Muslim household. Both her parents and extended maternal family were active members of their local mosque. The mother had a secret relationship which resulted in the birth of twins. The father knew about the children but wanted nothing to do with them, and the mother didn’t want her parents to know of the children’s birth due to fears that her family would be ostracised and that both her and her brother’s arranged marriages would be called off.
In this instance, the Judge found that confidentiality could be maintained as, if the family were to find out, their various nuptials were called off and they became pariahs it would ultimately lead to a familial breakdown. DHCJ Rees KC said “whilst I accept the mother’s statement that she would not be at risk of physical violence should the existence of children become known to her family, it is quite clear from her evidence that the wider social impact upon her, upon her parents and on her brother would be profound. I am satisfied on the evidence before me that this is a case where, if the existence of the children were to become known, there is a real risk of ostracism both of the mother within the family unit and of the family within the wider community.”
It’s clear that there is no hard and fast rule when determining whether a child’s birth should remain a secret and that each case should be dealt with on an individual basis.
Members of Becket Chambers can assist with matters pertaining to adoption, whether through s.19 of the Adoption and Children Act 2002 or through public law proceedings. Please contact the Clerks on 01227 786331 or via clerks@becket-chambers.co.uk for further details.
