Adoption Order set aside after mother claimed not to know fathers identity
Following a divorce or separation, matters relating to children can often be difficult. For an adoption birth father, the key issue is that he may not have parental responsibility if he is not named on the birth certificate, but he should still be told about adoption proceedings and may be able to challenge an adoption order made without his knowledge. Especially if one parent is unable to have custody or contact with their child, what can be more disturbing is losing legal ties to that child through a step-parent adoption.
Our family lawyers consider a recent case in which a father lost his child to a step-father through adoption. This is aimed at parents, particularly birth fathers, and other family members dealing with adoption or child arrangements, and it explains the legal effect of adoption orders, when a parent’s consent is required, what happens if false information is given in an adoption application, and when an appeal may be possible. A recent case of Re J (Adoption Appeal) shows why these issues matter: adoption permanently changes a child’s legal family relationships, so fairness and proper notice to birth parents are critical.
Father does not have parental responsibility of child
The case concerns a child born to unmarried parents. The parents of the child met through mutual friends and were living in the same locality. They were in their late teens when their relationship began which only lasted a few months and they became parents of the child.
The mother was still living at her parents house when the child was born. In the early weeks of the child’s life the father met the mother and the child on several occasions at the mothers families home. The mother registered the child’s birth but did not include the father on the child’s birth certificate.
The father suffered from anxiety and depression, as a result of his own adverse childhood experiences, and his visits to the child became more infrequent. The mother and her family then moved home, and the relationship between the father and child started to diminish as the father stopped visiting. Occasionally the mother contacted the father through social media with updates about the child. When the child was about 3 or 4 years old, the mother contacted the father and invited him to meet up with her and the child. By that age, kids usually grasp basic family relationships, so questions from an adopted child or young people can start while they are still young, especially as identity develops and a daughter begins to wonder about her dad. A birth father can be harder to explain than a birth mother, but parents can explain it through simple biology in an age-appropriate story. The father spent the full day with the child. Despite the mother having the father’s mobile number and social media contact, there was minimal contact and the father did not persevere with contact with the child.
Mother commences another relationship and step-father applies for adoption order
The mother later met another man with whom she began a relationship and became pregnant. In October 2011 the mother married the child’s step-father and a short while later the child’s stepbrother was born.
In April 2013 the step-father made an application for the adoption of the child. The process was arranged through the local authority and, in accordance with section 44(5) of the Adoption and Children Act 2002, a report was prepared by a social worker after meeting the child’s mother and step-father. Where required, a Cafcass officer or other agency professional would ensure the birth parents understood the implications, and the report provided the court with evidence about the placement of the baby and the proposed adoptive parents.
It is important to note that an adoption order is made with the consent of the parents, unless the court is satisfied that consent should be dispensed with. Parental Responsibility is the legal authority for a person to decide matters about a child’s upbringing, and a birth father’s role in adoption depends on whether he has it. An unmarried father who is not on the child’s birth certificate does not automatically have Parental Responsibility, while a father named on the birth certificate after 1 December 2003 generally does. A biological father may still need legal steps to become involved, and without Parental Responsibility he has fewer procedural rights, although the court may still need to consider his position. If a birth father has Parental Responsibility, he must be consulted, can oppose the application, and his consent is normally required unless the court dispenses with it in the child’s best interests. Social workers may assess the birth father as a possible carer before adoption, and once made, adoption orders are final and legally binding.
Mother and step-father provide false and misleading information at the time of applying for an adoption order
In the case of Re J the mother and step-father provided false and misleading information to the social services when they were preparing their report to the court. The social services noted within their report:
- The details and identity of the child’s father are unknown
- The child may have other half-siblings however this is not known due to the identity of his father being unknown
- Child’s birth father details are unknown and therefore there is no information of paternal family members
- Mother advised that she had met the father at a party and had sexual encounter with him but was unaware of the details. Following the sexual encounter there was no further contact, or any details known for her to be able to contact him.
- The mothers parents verified the information provided by the mother as correct
By contrast, in a closed adoption there is no contact or exchange of information between the adoptive family and birth relatives, including fathers and the wider birth families. In open arrangements, direct contact may happen if everyone agrees, and post-adoption contact agreements can set expectations between adoptive parents and birth relatives for the future.
The local authority has not been able to establish paternity as the child’s father’s details, or any extended paternal family details are unknown. It was on this basis that the court had ordered an adoption order in favour of the step-father.
The father appeals against the adoption order for his child
In 2016 following the father making a recovery from his depression he wanted to establish his relationship with his child. Having instructed solicitors, the father identified a mediator to assist only for the mother to not attend the meeting. Tracing relatives or making contact can be emotionally difficult, and realistic expectations and support can be helpful. The mother then contacted the fathers solicitors to advise of the child’s adoption.
The father appealed against the adoption order on the following grounds:
- The mother and step-father were aware of his identity but made no attempt to notify of the adoption or serve papers
- The mother and step-father lied to the local authority and the court on the fathers paternity.
- The court were unable to assess the adoption order properly based on the mothers lies to the court.
Adopted people can access their birth records and adoption records, and an intermediary service or adoption agency can assist with making contact with birth relatives and provide further information. In recent years, services have also offered practical support around contact details such as an address, cautioned that messages to a birth family member should be handled carefully, and noted that dna testing can raise more questions depending on the circumstances, including where a parent lives in another country or where a mother’s husband has been treated as part of the family story alongside other family members. PAC-UK offers face-to-face and telephone counselling and support groups for birth parents, Adoption UK has a free information line for adoptees, local authorities can provide ongoing support after adoption, and Cafcass may encourage specialist advice.
Following the father’s unopposed appeal, the court set aside the adoption order and made a parental responsibility order in favour of the father, along with regular weekend contact for the father with the child.
In reaching its decision the judge noted: “An adoption order is not immune from any challenge. A party to the proceedings can appeal against the order in the usual way. The authorities show, I am sure correctly, that where there has been a failure of natural justice, and a party with a right to be heard on the application for the adoption order has not been notified of the hearing or has not for some other reason been heard, the court has jurisdiction to set aside the order and so make good the failure of natural justice”.
This case highlights that despite not having parental responsibility over a child, it is still the father’s right to be notified of any application for an adoption order given that adoption involves the severance of a family’s legal relationships, and the creation of a new set of legal family relationships, which fundamentally impacts upon the life of the child, the natural parent who faces becoming a ‘former’ parent, and the adoptive parent.
Should you have any questions or concerns in relation to any child matter you can contact our offices to arrange a free initial consultation by contacting our family lawyers in Newcastle on 0191 814 1000 or let us call you back.
