Abstract
Adoption and racial discrimination
Mander & Anor v Royal Borough of Windsor & Maidenhead & Anor
Oxford County Court
HHJ Melissa Clarke
[2019] EWFC B64
6 December 2019
Mr and Mrs M are a British Sikh couple of Indian heritage who, in 2015 and after seven years of IVF treatment, decided that they were unlikely to be able to have biological children. They attended an introductory seminar for Adopt Berkshire and indicated that they would like to be considered for assessment as adopters. After telephone conversations and a home visit, they were told that the agency would not be pursuing their application and they were not given a registration of interest form. The reasons they were given were that the agency did not and did not expect to have any children of Indian origin needing an adoptive placement, that other local authorities had several Indian adopters approved and waiting for children, and that nationally there were many more adopters waiting for pre-school children than there were children for placement. Therefore it was unlikely that a young child from a different cultural background would be available. The agency suggested that the couple consider applying for an intercountry adoption from India.
Mr and Mrs M brought an action for racial discrimination under the Equality Act 2010 and for breaches of the Human Rights Act 1998.
Held
There were significant factual differences between the social workers and Mr and Mrs M, particularly about whether the couple were prepared to accept a black child or a sibling group. Mr and Mrs M said that they would accept a child of any ethnicity and a sibling group so long as one child was of pre-school age. The agency declined to take their application forward on their understanding that the couple would only consider a very young Asian or white child without special needs. The judge preferred the evidence of Mr and Mrs M where it conflicted with the social workers. She found that the agency, when assessing and approving potential adopters, was providing a service to the public, or to a section of the public, and was not concerned with the welfare of any identified child; the duty to consider the welfare of a child under section 1 of the Adoption and Children Act 2002 did not apply to any child who might be placed with the potential adopters until the child had been identified and was undergoing the matching process. The court referred to the statutory guidance, which does not allow an agency to refuse a registration of interest on the basis that the prospective adopters do not match the children in their area, unless they temporarily lack capacity. In this case the agency did not allow Mr and Mrs M to complete a registration of interest form, as it introduced an extra layer of administration – a meeting at which decisions were made as to which applicants would be invited to register an interest and which would be ‘indefinitely deferred’. The court found that Mr and Mrs M had been refused a registration of interest form because of their Indian background. The judge did not accept that the discrimination was justified because the agency was applying its experience to prioritise applicants who were more likely to achieve an adoption placement. She found that this may have been the motive behind the decision, but as it was not a factual criterion, it could not justify the discrimination. The judge did not accept the agency’s assertion that it did not have capacity to carry out an assessment of Mr and Mrs M and found that its selection decision was based on the assumption that it would not be in a putative child’s best interests to be matched with adopters from a different racial background, which was explicitly disapproved by the removal (in 2014) of the religion, race and culture matching clause in section 1(5) of the Act.
The court awarded Mr and Mrs M damages for distress and injury to feelings of £18,000 each and a full reimbursement of their cost of adopting a child from the USA, which amounted to £60,000.
The court did find that there had been no breach of Article 12, the right to found a family, as this does not include a general right to adopt a child, and refused the claim for aggravated damages, as there was no finding that the agency had intended to discriminate racially against Mr and Mrs M.
Comment
At a simple level, the outcome of this case seems obvious: of course no applicant for assessment as an adopter should be treated less favourably than any other on the grounds of their ‘race’. The agency in this case claimed that it was being practical. There is a considerable investment required to approve adopters – workers’ time and financial cost to the agency, time and emotional investment from the adopters – and there is no benefit in approving adopters who do not go on to be matched with a child. The social workers referred to the number of white pre-school children without difficulties needing adoption at the relevant time as being 15, while there were over 1500 white families available to them. While the aim of abolishing the race matching requirement was laudable in that it was an attempt to find adopters who could meet most of the needs of BAME children who wait longer for adoption, it does not address the practical reality that, all other things being equal, the welfare of an adoptive child is usually better met with adopters who match their racial and cultural background. Therefore there is little advantage in adding prospective adopters to a very overcrowded pool able to take a limited number of children. If a couple of Indian origin had been approved to adopt and only able to consider a single, young white child without significant difficulties, they would have been unlikely to find a match (and of course it must be noted that the court in this case found that this couple was not offering such limited matching criteria although that was the basis on which the agency acted). Matching decisions would be based on the child’s needs and they would have no cause of action if another adopter was selected and the only difference between them was whether they matched the child’s race.
Agencies have a fine line to tread – they cannot assess everyone who puts themselves forward, but the statutory guidance does not allow them to assess only those applicants who could meet the needs of the children they have waiting. The court in this case pointed out that the preparation and training could lead to applicants expanding their matching criteria, and practitioners who attend adoption days will have seen adopters fall in love with children they would not have considered on paper. This case makes clear that, unless there are clear reasons why an applicant is unsuitable for assessment, everybody should be given an equal opportunity to become one of those adopters.
When to make a Part 19 application
Re A, B & C (Adoption: Notification of fathers and relatives)
Court of Appeal (Civil Division)
McFarlane P, Peter Jackson and Nicola Davies LLJ
EWCA Civ 41 [2020]
29 January 2020
Background
The court dealt with three appeals concerning unconnected families in separate cases, but all involving children to be placed for adoption. In each case the mothers wanted to keep the existence of the child and of any proceedings secret, not wanting either the fathers or their own parents and families to know about the child.
Case A. Both parents were students and had been in a relationship for some years. Two previous pregnancies had been terminated with the knowledge and consent of the father. The father had not been named but could probably be identified. The mother wanted the baby adopted, she suffered from depression and would be unable to care for a child. Both the father and his partner’s mother also suffered from mental health problems and her mother cared for her brother who had learning difficulties. The child was placed with early permanence carers and her mother signed consent to placement and to adoption. A Part 19 application was made and the court agreed that the wider family need not be told of the child’s birth. The children’s guardian appealed.
Case B. Care proceedings were issued for a child at birth due to the mother’s chaotic lifestyle and failure to attend ante-natal appointments or attending under the influence of drink or drugs. The baby remained in the care of her mother, firstly in a residential unit and then in a mother and baby foster placement. The mother described an abusive childhood in a large family where she suffered beatings, FGM and exorcism, followed by an arranged marriage overseas. She says that she does not want her family to be involved with the child if she has to be removed from her care, and does not want the family to know that she has had a child outside her culture. The putative father had booked a termination for her, was violent to her and is involved with drugs and gangs. He is currently in prison and she is scared of what he would do if she shared information about him. The court hearing the care proceedings directed that the grandparents be informed (with seven days for the mother to do that herself) and that DNA testing be ordered for any putative fathers. The mother appealed.
Case C. C was born after a concealed pregnancy and her mother immediately asked for her to be placed for adoption. The baby’s parents are married and have several older children. The mother has reported violence, coercive control and rapes by the father. She says that C was the result of rape and consequently she felt she could not care for him. The parents were separated, but the father remains in contact with his other children. She was afraid he would be violent if he discovered that she had concealed the pregnancy, would not care for the child and would be likely to humiliate her within the community, forcing her and her children to leave the area. The local authority issued care proceedings, although now accepting that this was inappropriate, and the mother applied for an order that the father and extended family not be told of the proceedings. DNA testing was done using samples from her other children and established paternity. The local authority supported her application but the children’s guardian did not. The court refused the mother’s application and she appealed.
Held
All three cases were heard together and Peter Jackson LJ gives a lengthy composite judgment, running to 47 pages, including a comprehensive review of the case law going back to the 1960s. He starts with consideration of the statute law, noting that it has never been decided whether the paramountcy principle and the welfare checklists in section 1 of the Children Act 1989 and the Adoption and Children Act 2002 apply in the case of disclosure of information in adoption cases.
The court held that the application of the welfare checklist and paramountcy principle in both the Children Act and Adoption Act apply where the court (in the Children Act 1989) or the court or adoption agency (in the Adoption and Children Act 2002) is making a decision relating to the upbringing or adoption of a child. In these cases, whether in care proceedings or in Part 19 applications, the court is not making a substantive decision, but is determining who should be consulted about the decision. The child’s welfare, although of course relevant in deciding whether the mother’s confidentiality should be respected, is not the paramount consideration.
The court held that decisions on who should be consulted should be made consistently. Social workers and courts should apply the same principles in each case. There should be no differentiation between family members; for example, no hierarchy between putative fathers and grandparents. Similarly, there should be consistency across proceedings, and the same approach should be applied to the decision whether in care proceedings, adoption or placement applications or Part 19 proceedings.
The court recognised that where adoption is being considered for a baby, decisions need to be made quickly. Where a mother requests confidentiality, a local authority must make a speedy decision as to whether that request should be followed or whether it should be referred to the court. Where the case is not clear cut, a Part 19 application should be issued and listed by the court for an urgent case management hearing. The local authorities in these three cases put together an agreed statement of steps to be taken by a local authority where confidentiality is respected, and although the court does not seek to dictate local authority procedures, the statement is set out in the judgment at para 87 as providing some assistance to others. It describes the steps that a local authority should follow to establish independent information, to discuss and to examine critically the information it receives and if necessary, to involve the legal department and CAFCASS at an early stage. It is noted that legal aid is not available for a mother without means and merits testing and it may be necessary to consider funding emergency legal advice. If an application is made, a full statement of the information gathered and the local authority’s position should be prepared.
Any application should be referred to the designated family judge for an allocation decision. A CAFCASS officer must be appointed and directions given for filing of evidence, analysis and an early date for a court hearing. The court should prioritise such cases and give sufficient time for evidence and argument, plus a reasoned judgment.
The principles to be applied to the decision about whether a father or a relative should be informed are:
The mother’s right to a private life is engaged and can be infringed only where the interests of others require it; The importance of the adoption decision for the child and wider family can justify overriding the mother’s wishes, but whether it will do so depends on the facts of each case; The decision should be prioritised and considered both urgently and with thoroughness; The facts must be established as much as possible, not taking mother’s information at face value; A fair balance must be struck between the various interests; the welfare of the child is important but not paramount; The following factors are relevant: If a father has parental responsibility compelling reasons would be required before information could be withheld; If the father or relative has an established family life with the mother or child, his Article 8 rights require strong reasons before information is withheld; An assessment should be made of the substance of relationships between the parents and the significance of relatives; The likelihood of a family placement being a realistic alternative to adoption; The impact on the mother of notification being given – excessive weight should not be given to short-term difficulties or social unpleasantness; Cultural and religious factors could either increase the risks of notification or give greater importance to the child being placed within the family; The availability of information – the mother cannot be forced to name a father or relative – and the likelihood of the information being able to be kept secret; The impact of delay – an application to court will mean some necessary delay but there may be circumstances where any delay would have a significant impact; Other relevant matters. This list is not exhaustive and all relevant matters must be considered. The maintenance of confidentiality is exceptional and the profound significance of adoption and fairness to others means the balance will often fall in favour of notification, but the decision must be taken on the facts of each individual case.
In each of these three cases the court decided in favour of notification.
In case A, the parents had been in a long relationship and there was no evidence of significant risk if the father knew about the child. There was no independent evidence to allow a conclusion that the father and family would be unable to offer anything to the child and so the mother would be given the opportunity to disclose the information, failing which the local authority would do so.
In case B, the child might still remain with her mother and any possible risks to the child would flow from a placement with the grandparents rather than from them simply knowing about the child. A cousin had been told about the baby and the chances of the secret being kept indefinitely were low. The court accepted the trial judge’s reasons for allowing disclosure, although noting that the analysis suffered from the judgment being delivered extempore in the middle of a heavy list.
In case C, the father had parental responsibility for the child as he was married to the mother and not to inform him of the birth would be an extreme course to take. He was also the father of the child’s siblings and remained involved in their lives. Although the circumstances of C’s conception and the impact on the mother were distressing, the proposal to place C for adoption was of such lifelong significance for her that notification of her birth and assessment of the possibility of family placement made disclosure necessary.
Comment
This is a summary of a very thorough history and analysis of a subject which causes considerable difficulties for local authorities. The definite messages from this decision are that local authorities must move quickly to examine a mother’s reasons for requesting confidentiality and must make a Part 19 application immediately if they cannot be sure that confidentiality is justified. There is always a risk that if a Part 19 application is not made, a judge hearing an adoption application many months later may take a different view on the need to inform father or family, with a resulting greater impact on the child and mother than if the issue had been resolved shortly after birth. Whether it is coincidence that in all three of these cases disclosure was ordered, or whether this represents a shift in judicial approach towards a mother’s wish for confidentiality, will only become apparent as more cases are considered and reported. Until that can be gauged, it might be wise for local authorities to make Part 19 applications in all but the most clear cut of cases.