Adoption – Rights of Unmarried Fathers

In Re H (a Child) (Adoption: Disclosure) In Re G (a Child) (Adoption: Disclosure) (TLR 5 January FD)

Although under English law a natural father without parental responsibility is entitled to apply for residence or contact under the Children Act 1989, he is not a parent for the purposes of the Adoption Act 1976 and has no right to consent to, or to refuse his consent to, adoption or freeing for adoption under ss16 or 18 of that Act, nor any right to be given notice of the proceedings under rule 4(2) or rule 15(2) of the Adoption Rules 1984. However, the court, recognising that in an adoption application the position of the natural father should be considered, could direct that he be given notice of the proceedings under rule 9(3) or rule 21(5) of the 1984 Rules or be made a party and, as a matter of practice, it was expected that he would be informed of proceedings unless for good reasons the court decided that it was not appropriate to do so. Where an unmarried mother refused to disclose the identity of the natural father and placed the child with the local authority for adoption on the basis that confidentiality would be respected, social workers counselling the mother ought to warn her that at some stage the court would have to make a decision in adoption proceedings as to whether to add the father as a respondent. The degree of confidentiality offered to mothers who placed their children for adoption with local authorities needed to be reviewed as a matter of some urgency; regulations 7, 10, 11 and 14 of the 1983 Regulations might also need to be looked at in the lights of the rights of the natural father under article 8 of the European Convention on Human Rights. If the mother refused to disclose the father’s identity her reasons had to be carefully considered and, unless those reasons were cogent, it would be wise for the local authority to seek legal advice at an early stage and if necessary, apply to the court for directions on whether to notify the father. If a father is to be notified he should be told as soon as possible in order to reduce delay and certainly before the child is placed with prospective adopters. If the father were found to have a family life with his child then article 6.1 of the Convention might also apply, raising the difficult question of the impact of the rights of other parties under article 8, and the welfare principle on the right to a fair trial. In one of the cases before the court it was satisfied that H was part of the family unit with the father, even though he did not know of the child’s birth, and to place H for adoption without giving notice would prima facie be a breach of his rights under both articles 8 and 6. His views needed to be canvassed and he should be given the opportunity to indicate whether he wished to be heard. Directing that steps should be taken to inform the father of the proceedings, the President said that it would not be just to require the mother by court order to disclose the father’s identity but requested that she voluntarily provide the information to the local authority and the court.