Breaking the rules in children cases

children

“Most rules have an exception” said Mr Justice Holman, in the course of his short judgment in A Local Authority v The Mother & Another. That judgment, and another Holman J judgment also published on Monday, proved the truth of that statement.

As Holman J also said, A Local Authority v The Mother & Anor concerned “a very exceptional application in very exceptional circumstances.” He went on:

“The order which I have already indicated I will make is a very exceptional order indeed; and I wish to stress that I am very conscious of that, and of the fact that it requires extreme circumstances before such an order is made.”

That order was to dispense with the need to give notice of adoption proceedings to the child’s father. What exceptional circumstances could possibly justify this?

The answer to that question lies with the mother’s background. She was a member of an ethnic minority community (we are not given the identity of the community), and she gave birth to the child in circumstances which would, if they were to find out about it, at the very least lead to her being ostracised by her family and community, and at the worst could even lead to her being killed.

The father of the child was the mother’s fiancé, and they were due to be married a few weeks after the child was born. No one but the mother knew about the birth, as she herself did not know that she was pregnant, until she presented herself at a hospital describing symptoms and asking for help as to what was wrong with her. The child was born about a week later, and the mother immediately consented to her being adopted but asked that no one, including her fiancé, be told about the child.

As Holman J explained, it is “axiomatic that, save in the most exceptional circumstances, the statute and rules and practice all require that before consideration is given to the adoption of a child, both genetic parents, if known, must be identified, located and made aware of the circumstances.” He was satisfied that this was one of those exceptional cases. It was impossible, he said, to conceive how it could be in the child’s best interests to give notice to the father.

The other judgment was in the case CS & Another v PD. In this case the mother was ordered to return her two children (by different fathers) to America, pursuant to the Hague Convention on Child Abduction. Such an order is usually final, with a quick return being required, and any further decisions relating to the children being left to the courts of their ‘home’ country to decide.

However, immediately following the order the mother claimed to suffer a severe deterioration in her mental or psychiatric wellbeing as a consequence of the decision and the prospect of the imminent, enforced, return of the children to America. The father of the younger child (the mother’s husband) applied for the order to be enforced, and the mother cross-applied for it to be set aside, on the grounds of a subsequent and significant change in circumstances.

Directions were given for the mother to be examined by a consultant adult psychiatrist. The gist of her report was that, as a personal and subjective reaction to the decision that her children must return to America, the mother had suffered, and continued to suffer, severe psychiatric ill-health, which could only deteriorate yet further if indeed her children had to return to America.

Upon seeing the report both fathers accepted that their respective child could not return to America, as the effect upon the mother, and indirectly upon the child, would be likely to be so severe and deleterious. Accordingly, the mother’s application to set aside the order was granted by consent.

Two interesting, albeit unusual, judgments. They both demonstrate that when it comes to arrangements for children even the most important ‘rules’ can be ignored, if that is what the best interests of the child require.

The report of A Local Authority v The Mother & Anor can be found here, and the report of CS & Anor v PD is here.

Image by Edward Simpson via Flickr under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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1 comment

CB - July 2, 2017 at 1:46pm

Breaking the rules in children cases?
In provable cases were a child has never been known by any other name than birth certified name Setting down of the child’s true birth certified name has to be a PRIORITY
Any case, held and found to be in a different child’s name other than birth certified name should be an offence followed by prison sentence

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