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Obligations to assess the birth family of the mother

Fran Massarella looks at the outcome of an application under Part 18 Family Procedure Rules 2010 to determine whether there was an obligation for the local authority to assess members of the mother’s “birth family”.

In Re F (Assessment of Birth Family) [2021] EWFC 31 (Mr Justice Cobb) the subject of the application was F, aged 15 months. Her mother was Miss S and her father was Mr T, who had no current relationship with Miss S and did not wish to care for F. F was in foster care and had been for six months prior to this hearing. She had regular contact with her mother and her maternal grandparents. The local authority gave notice of its intention to return F to the care of her mother in a highly supported community setting where the mother would receive intensive therapeutic support to address her mental ill-health and emotionally unstable personality disorder.

The mother was 19 at the time of the hearing and had spent the first 4 years of her life in the care of her birth mother and father where, the local authority alleged, she suffered significant neglect. At age 6, she was made the subject of a placement order and adopted by Mr M and Ms N, the maternal grandparents of F, along with her younger brother. The mother suffered mental ill-health from the age of 11 and at the time of the hearing was considered to suffer ‘complex mental health difficulties.’

These difficulties progressed significantly at age 13 when her birth mother contacted her via social media and the mother reports her adoptive placement began to break down. In 2019, the mother visited her birth family over several weekends and during one of these visits discovered she was pregnant, aged 17 at the time. F was born in January 2020 and at age 2 months, the mother took her to see her own birth family. During this visit, F fell from her pram and sustained a fractured skull, resulting in hospital treatment. A Child Protection Plan was put in place under the category of neglect and the professionals involved advised the mother not to visit her birth family again. The mother agreed that her birth family were not a supportive influence and disassociated herself from them. F was accommodated in September 2020 because of a decline in the mother’s mental health and her relationship with an abusive partner.

The mother was assessed by the local authority for her capacity to care for F, which was positive overall but not without concerns. Mr M and Ms N did not feel able to offer a home to F due to their work commitments, age and on-going difficulties with both Miss F and her brother, so declined to be assessed.

On behalf of the local authority, it was argued that it was ‘incumbent on the local authority to assess members of the birth family’ for the following reasons:

a. they were bound to the mother and to F by a relationship of consanguinity;

b. they knew of F’s existence;

c. they were interested in F;

d. the birth maternal grandmother successfully cared for a child after the adoption of the mother and her brother;

e. the mother continued to maintain a relationship with her birth father by text and phone; and,

f. members of the wider birth family cared adequately for their children without any social work concerns.

On behalf of the mother, it was argued that no assessment of the birth family should take place for the following reasons:

a. the mother strongly opposed this assessment (seeing her adoptive family as her ‘family’);

b. the mother believed that her birth family would be unsuitable carers for F;

c. the mother had fallen out with her birth mother so conflict would be likely;

d. the mother felt that an assessment of her birth family would destabilise her mental health;

e. any assessment would create divisions within the mother’s adoptive family;

f. the mother’s birth family ceased to be her legal family when she was adopted; and,

g. the Article 8 ECHR rights of the birth family were virtually non-existent.

On behalf of the Children’s Guardian, it was submitted that there was no obligation for the local authority to make the assessment and given the mother’s opposition, it would be counter-productive to do so.

The case of Re A, B, C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 41 was cited at [22], where it was held that there ‘is no statutory obligation upon a local authority to make enquiries in every case and the issue of notification is a matter of discretionary judgement in light of all the facts of the case.’ The case of Re C v XYZ County Council [2007] EWCA Civ 1206 was also cited at [23], where it was similarly held that there is ‘no duty to make enquiries which it is not in the interests of the child to make and enquiries are not in the interests of the child simply because they will provide more information about the child’s background: they must genuinely further the prospect of finding a long-term carer for the child without delay.’

The Court concluded that the local authority was under no obligation and indeed should not embark on any assessment of the birth family. At [29] it was held that the mother’s birth family were her original family but were not her current family, nor were they her relatives. Furthermore, the birth family’s limited contact with F so far fell short of supporting any finding that they had acquired Article 8 rights to a family life with F as this cannot be established on the basis of biological kinship alone. Additionally, even if the birth family brought themselves within the definition of ‘family’, there would still have been no obligation for the local authority to inform, consult or assess them.

It was also held that there were clear reasons steering away from the birth family as a realistic option to care for F, including the fact of the mother’s adoption due to neglect, the events surrounding F’s injury in March 2020, the accepted fact the mother and her birth mother have a difficult relationship and the view of professionals that the mother should avoid contact with her birth family.

Accordingly, it was concluded that whilst there might be ‘a situation in which a birth family could properly fall to be assessed in circumstances such as these, where for instance the previously adopted parent… had reconnected successfully with his/her birth family’, but that that was not the case in the present scenario.

Francesca Massarella is due to begin pupillage at Spire Barristers in September 2021.

Reagan Persaud of Spire Barristers acted for the Local Authority.

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