The birth father applied for permission to appeal out of time against the making of an unopposed adoption order in the magistrates’ court three years earlier in respect of J, a child now aged 11. At the time of the application made by the mother’s then husband, J’s step-father, to adopt the child both the mother and her husband informed the social worker that they did not know the identity of the father, nor his whereabouts and contact details, asserting that they had no means of knowing where he could be located. Accordingly, the father was given no notice of the application and the order made was predicated on incomplete and essentially false information. The father sought to appeal the order on the grounds that (i) although the applicant to the adoption and the mother were well aware of his identity as indisputably the father of J and had numerous ways of making contact with him, they made no attempt to serve him with the papers in the application or inform him of the proposed adoption, (ii) the applicant and the mother had lied to the local authority, the reporting officer and the court about their knowledge of the paternity of the child and had deliberately frustrated their enquiries, and (iii) the local authority, the reporting officer and the court had been unable to properly assess the application for adoption because of false information provided about the child’s paternity, his relationship with his birth father, the contact they had had with each other and the father's known desire to have a relationship with the child, all of which appeared to have been hidden from the professionals by the applicant and the mother.
On the application—
Held, permission to appeal out of time granted and appeal allowed. (1) Although the father had not been a party to the proceedings in the lower court, he was so directly affected by the issues before that court, which undoubtedly and profoundly engaged his right to respect for his family life, there was no hesitation in concluding that he should be permitted to bring the appeal (para 2).
Dicta of Wall LJ in Webster v Norfolk County Council [2009] 1 FLR 1378, para 141, CA and dicta of McFarlane LJ in In re W (A Child) (Care Proceedings: Non Party Appeal) [2017] 1 WLR 2415, paras 41, 42, CA applied.
(2) Indisputably, the mother, her husband and her family had misled the local authority social worker, the CAFCASS reporting officer, and ultimately the justices considering the adoption application. They accepted that they had. It was plain that each one of the father’s grounds of appeal were unchallengeable. The professionals had been unable to conduct their statutory enquiries and the justices had been materially misled about J’s background history, his paternity, and the father’s interest in him. The court had thus been rendered unable, by virtue of the conduct of the mother and the applicant to reach a completely informed or reliable view about the appropriateness of the adoption in J’s best interests. The outcome of the hearing was clearly “unjust” because of the “serious … irregularity within the meaning of FPR r 30.12(3). Rightly, the Rules compelled the court in the circumstances to allow the appeal, to set aside the adoption order and to direct that the Registrar General should cause the entry in the Adopted Children Register to be deleted or removed. Proceeding only on partial information had the effect of materially undermining the integrity of the order by which the applicant had become J’s legal father driving inexorably to the conclusion that the adoption order had been wrongly made (paras 16, 23, 24, 33).
Dicta of Sir Thomas Bingham MR in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, 252e–f and dicta of Butler-Sloss LJ in In re K (Adoption and Wardship) [1997] 2 FLR 221, 228h considered.
Per curiam. An application on the standard Form A58 will have required the adoption applicant to declare why the father's consent was not available and will have required the applicant’s signature under the statement of truth. By that statement are to be found the words: “Proceedings for contempt of court may be brought against a person who makes or causes to be made, a false statement in a document verified by a statement of truth”. In accordance with FPR r 17.6 power is vested in the court to commit to prison those who make or cause to be made false statements in a document without an honest belief in the truth; the procedure is that set out in rule 37.17. Despite having resolved not to initiate any form of civil sanction, since the father has made it clear that he does not wish for the mother and the applicant to be punished for their lies, should any person contemplate such deception of the authorities or the court in these circumstances, they should understand that generally such dishonesty will be punished (paras 35, 36).
Amanda Ginsburg (instructed by John Barkers, Solicitors) for the father.
The mother and the step-father were not represented.