In terms of the child’s welfare, cases related to adoption and birth parents can be complicated legally; especially when the father is unknown. Michael Segal explores a related case

Legal case notes: Re: L (Adoption: Contacting Natural Father) [2008] 1 FLR 1079, Munby J

The facts
L was born as the result of a brief relationship between her parents. The mother concealed her pregnancy from everyone, even the father, who was unaware of L’s existence. The mother attended hospital in labour, said that she wanted L to be adopted, left the hospital within two hours of the birth without seeing her, never saw her again, and refused even to receive photographs of her.

From the day after the birth the mother was in the voluntary care of the local authority, to whom she gave limited information about the father, but she would not identify him, even though the local authority and the guardian suspected that she could do so.

The local authority applied to the court for orders that it need not take any further steps to identify L’s father, and that it need not inform the maternal family of L’s birth or its intention to place her for adoption.

The mother provided no further information about the father, did not want to work with the local authority or engage herself with the planning for her daughter, and wanted nothing more to do with her.

The guardian, while agreeing that the local authority need not inform the maternal family of L’s birth or placement, sought an order that the local authority should take steps to inform L’s father of her existence and that, for this purpose, the mother should disclose all the information she had about him, including his surname and last known address.

The judge directed that the local authority need not and should not take any further steps to inform the maternal family of L’s birth or placement, because the mother was adamant that they should know nothing about what had happened, and it seemed to him that this understandable desire should be respected.

The real question was whether the mother could be compelled to identify the father. The judge held that, as a matter of law, the court had power to order her to do so, but said that whether it was proper, appropriate or prudent to compel an unwilling mother to disclose the name of the child’s father was a very different thing.

There were, he said, compelling arguments why she should be ordered to identify the father. L should have an opportunity of growing up with her birth family, if possible, and adoption should not normally be considered until all possible family members had been ruled out. It might be that there was ‘out there’ a father who would want to bring her up.

Even if he could not bring her up, it might be appropriate for her to have contact with him, even if only indirect contact after she had been adopted. And if she were to be adopted, she should know as much about her father and his family as possible, for the purposes of life story work, so that, for example, she could in later life, if she chose to do so, try to trace him. Her mother’s stance was denying her all these things.

But, said the judge, despite these compelling arguments, the reality was that there was virtually no prospect that the mother was going to volunteer any further information about the father. She had told the court, but not on oath, that there was nothing more she could tell it about him.

Suppose she were required to go into the witness box to give evidence on oath or affirmation, and maintained her denial? Was it to be suggested that she should then be cross examined, so that the truth could be extracted from her?

The judge said: ‘I confess that I find the idea very disturbing. There is something deeply unattractive and unsettling in the idea that a woman in the mother’s position should be cross examined as to the nature, extent and duration of her relationship with the father. In relation to matters as personal and intimate as this, we should be wary of seeking to open windows into people’s souls.

‘And in any event, where would cross examination get us? Suppose she makes no further disclosures of any significance.

I might be left with the powerful impression that she was not telling the truth, but that of itself would get us nowhere. Contempt could not be proved unless I were satisfied to the criminal standard of proof, beyond reasonable doubt, that she was telling lies.

‘And suppose that I was satisfied? Could it seriously be suggested that she should be punished, even sent to prison? Surely not. Punishment would surely be unthinkable. The whole process smacks too much of the Inquisition to be tolerable.

And it is not to be justified merely because we believe, however strongly, that what we are doing is being done in the best interests of the child.

‘We can reason with someone in the mother’s position.

We can seek to persuade. But we should not seek to force or coerce. In the particular circumstances of this case I am satisfied that we have to accept what the mother has told us.

It would be wrong to push matters any further’. 

This pragmatic decision requires little comment. By s. 1 of the Children Act 1989, when a court determines any question with respect to the upbringing of a child, the child’s welfare is the court’s paramount consideration. This case shows that there is a limit to the application even of this important provision.

Michael Segal has been a district judge of the Principal Registry of the Family Division since 1985. This is a specialist family court and about two-thirds of its work concerns disputes about children.

The cases presented here aim to help the reader understand better the nature of and the types of decision making within the court system.

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