May 13, 2021
Within care proceedings issued by the Local Authority (Re F (assessment of birth family)  EWFC 31 (12 April 2021)), the question arose as to whether there was an obligation on the Local Authority to assess the Mother’s birth family (she had been adopted as a child) as potential carers for her child, who was now subject to these proceedings. The Local Authority asked the Court to determine this single issue during the course of the proceedings.
The background was that the Mother had herself been adopted as a child. She had located and contacted her birth family when her adoptive placement had broken down. However, she acknowledged after spending some time with her birth family (the longest period she stayed for was one month) that she had had a difficult time there, that the family were using drugs and that they were not supportive of her pregnancy.
The Local Authority’s position was that they should assess the birth family as they are bound to the Mother and the child and the recent contact had “socially undone” the severance of the legal relationship brought about by the adoption of the Mother. The Mother’s birth mother had successfully cared for a child after the adoption of the Mother and her brother and the birth family knew of and cared about the child.
The Mother did not want her birth family to be assessed as potential carers for her son. She did not consider that they would be suitable carers for the child; she considered her adoptive family to be her family; she was no longer in contact with her birth family and she felt so strongly about this that to assess the birth family would destabilise her mental health and jeopardise her opportunity to care for the child herself. The Mother also relied on the fact that the adoption had ended the legal relationship between the Mother and her birth family and that the adoption brings pre-existing Article 8 rights (European Convention on Human Rights) to an end. The child’s Guardian supported the Mother and also stated that the assessments may be counterproductive due to the impact on the Mother. The Guardian also stated that the purpose of a family placement is to place a child within established family networks, which did not exist here.
The Judge considered the case law and the legislation regarding assessments of family members. Mr Justice Cobb determined that there is no duty to make enquiries that are not in the interests of the child to make. In this case, the Judge determined that the Local Authority should not embark on an assessment of the birth family. He determined that even if the birth family could bring themselves within the definition of “family”, the Local Authority must assess the “realistic options” and in this case, the assessment would cause a detrimental effect on the Mother’s mental health and cause an “unwelcome and avoidable division” between the Mother and her adoptive parents.
The Judge added that he could see a situation in which a birth family could properly fall to be assessed but that it was not so in these circumstances. The Judge cautioned that the answer to whether the birth family should be assessed would very much depend on the circumstances of each case.
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If you have a family case where you require some advice or representation, please contact Mavis for an appointment with a family solicitor on 020 8885 7986.