Sun, 18 Sep 2016
This short article examines the law concerning the right of a natural father without parental responsibility to receive notice of adoption proceedings relating to his child.
At present there is no mandatory statutory requirement that a father without parental responsibility should be given notice of adoption proceedings concerning his child.
Statutory Context
A parent with parental responsibility is an automatic respondent to adoption proceedings under rule 14.3 Family Procedure Rules 2010 (“FPR 2010”). The combined effect of sections 47 and 52(2) of the Adoption and Children Act 2002 is that a child can be placed for adoption and be the subject of an adoption order without notice to a father who does not have parental responsibility. This is because a father who does not have parental responsibility is not an automatic respondent to adoption proceedings unless there is a child arrangements order in his favour and his consent to placing his child for adoption or the making of an adoption order in respect of the child is not necessary under the 2002 Act.
That said, rules 14.3(3)(a) and 14.8(1)(b) FPR 2010 provide the Court with a discretionary power to make a father without parental responsibility a party to an application for a placement or adoption order.
Additionally, in the case of a father without parental responsibility whose identity is known to the adoption agency and the agency is satisfied that it is appropriate to do so, Reg 14(3) of the Adoption Agency Regulations 2005 mandates the adoption agency so far as is reasonably practicable to provide him with counseling and, inter alia, explain the implications of an adoption order and, so far as is possible, ascertain whether he intends to apply to acquire parental responsibility or intends to apply for a child arrangements order in respect of the child. Where there is doubt about the appropriateness of contacting the father, the adoption agency may seek guidance from the Court in the form of a direction or declaration. See Re J (Adoption: Contacting Father) [2003] 1 FLR 933.
However, in the case of a non-agency adoption, the obligation placed on the local authority by sections 44 and 45 of the 2002 Act is to investigate and report to the Court. The investigation must '.. so far as is practicable, include the suitability of the proposed adopters and any other matters relevant to the operation of section 1 in relation to the application. Rule 14.11 FPR 2010 requires the report to cover the matters in Practice Direction 14C which include information about the natural father. This requirement does not however oblige the local authority to speak to the natural father or provide him with notice of the adoption proceedings.
Case law
In Re H, G (Adoption: Consultation of unmarried Fathers) [2001] 1 FLR 646, Dame Butler-Sloss held that where family life exists within the meaning of article 8 of the ECHR as between the mother and the father (or as between the father and the child) one would require strong countervailing factors to justify the exclusion from the adoption process of the father without parental responsibility. Dame Butler-Sloss further held that as a matter of general practice, Judges giving directions in adoption proceedings should inform a natural father without parental responsibility of the proceedings unless there are good reasons to the contrary.
Points to ponder
Given that (a) an adoption order is a draconian order (once made by the court it extinguishes the rights, duties and obligations of the natural parents and vests them in the adopters), (b) it is mandatory under PD12C FPR 2010 that a father without parental responsibility should be given notice of an application for an order under section 31 Children Act 1989 which on any view is less draconian than an adoption order and (c) as long ago as 2001, Dame Butler-Sloss ruled in Re H, G (Adoption: Consultation of unmarried Fathers) that as a general practice a father without parental responsibility should be informed of adoption proceedings concerning his child unless there is a good reason not to do so:
- is it good enough that in this day and age there is no mandatory statutory requirement that a father without parental responsibility should be given notice of an application for a placement or adoption order in respect of his child?
Is there a good reason for the absence of a requirement in the FPR providing for the giving of notice of an application for a placement or adoption order to a father without parental responsibility as there is when an application is made for a section 31 Children Act 1989 order?
This article was written by Family Law barrister Richard Alomo, please click here to view Richard's profile.
