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As the Family Courts interpret it, a parent’s right under Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 to ‘family life’ is only engaged where his ‘family life’ has already become established.

In Re G (A Child) (Adoption; Disclosure) [2001] 1 FLR 646 the court concluded that a putative father had no right to be informed of the birth of his child.  The parents had never cohabited and their relationship had never constituted a ‘family’.  In the case which formed part of the same hearing, Re H, however, the parents had lived together for several years and there was an elder child, the father was therefore entitled to respect for his ‘family life’.

In the case of Re J [2003] EWHC 199 (Fam), a young mother sought to have her baby adopted.  Whilst the mother identified the father to social services she refused permission for him to be approached.  Social services took the view that the father should be consulted prior to adoption proceedings and sought the court’s permission to breach their duty of confidentiality to the mother.  The court took the view that the father’s consent could be dispensed with, on the basis that the man, who had not been aware that he was a father, had not hitherto played a parenting role in the baby’s life and should, therefore, be precluded from doing so in the future.

In 2007 a local authority took a mother to court who wanted to keep the birth of a child (Baby E) secret from the child’s father; although the mother wanted to release the child for adoption, the LA believed that her family and the father should be given the opportunity to bring up the child [1].

The County Court agreed, so the mother went to appeal.  In Re C (A Child) and XYZ County Council and E.C. [2007] EWCA Civ 1206 Lady Justice Arden, and Lords Justice Thorpe and Lawrence Collins ruled that the father could neither be identified nor informed, and that the child could not be introduced to her grandparents.

In M v F and Others [2011] EWCA Civ 273, 1 FCR 533 the Court of Appeal upheld the High Court decision of Nicholas Mostyn to refuse the application of a mother who wanted to place a child for adoption and keep its existence a secret from the father.  The local authority believed the father should be informed.  The critical factor was that the parents already had children and thus the father’s Article 8 rights were engaged because a full family life already existed.  His Article 6 rights were also engaged as he had the right to be involved in any legal process which would have taken the child out of the family and to challenge that.

A court will only allow such an application in ‘exceptional circumstances’.  The courts interpret this to mean in circumstances in which no family life has been established, but that principle denies the child any opportunity for family life to become established.  This contradicts the principle – under Section 1 of the Children Act – that it is the child’s welfare which should be paramount and the Section 23 directive that where possible a child should be placed with his family.  Fathers who, in the words of Lady Justice Arden, have ‘no right to be violated’ will nevertheless feel that is precisely how they have been treated.  In the Family Courts a mother and a child is a family; a father and a child is not.

[1] Owen Bowcott, Mother’s court fight to keep baby secret from father, the Guardian, 08 November 2007

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