Guernsey Legal Resources

The parties and the birth father appeared before this court on July 9th, 2009. On that date the birth father argued that he was automatically a party to the adoption application on the basis that he was a “parent” and therefore under s.5(1)(a) of the Adoption (Guernsey) Law 1960, as amended, his consent was required to the making of the adoption order, or if it was found that his consent was being unreasonably withheld (s.6(1)(b)), then his consent could be dispensed with.

2 That submission was opposed by the applicants and I concurred with the interpretation of the Law and Rules as advanced by the applicants. I was satisfied that a birth father without parental rights and obligations or, as under the new Law, without parental responsibility, was not a “parent” for the purposes of the Adoption (Guernsey) Law 1960, as amended, or under the Royal Court (Adoption) (Guernsey and Alderney) Rules 2006.

3 If the father succeeds in his application to be joined as a party to the adoption proceedings, his consent is neither required under s.6(1) of the Adoption (Guernsey) Law 1960, as amended (as he does not have parental responsibility), nor would the court have to dispense with the same, but it would be on the basis he was entitled to have his views taken into account by the court when determining the application before it.

4 In these circumstances I directed that the court should hear a formal application by the father to be joined as a party to the proceedings, and I further directed that he be given certain limited information in order to facilitate such an application.

5 The father’s application to be joined as a party to the adoption application was heard on January 18th, 2010. It is also relevant to note that the father issued a further application (dated January 14th, 2010) “for leave to apply pursuant to r.47(d) of the Family Proceedings (Guernsey and Alderney) Rules 2009 to discharge the fit person order in respect of my daughter pursuant to s.52(2) of the Children (Guernsey and Alderney) Law 2008.”

7 The father accepted inter alia that if the court refused his application to be joined as a party to the adoption proceedings then his application for leave to make an application under the Children (Guernsey and Alderney) Law 2008 would also fail.

8 Advocate Brehaut on behalf of the father urged upon me a number of factors which she submitted demonstrated that it was in the best interests of [the infant] that the father be given leave to be joined as a party to the Adoption Law proceedings and be allowed to apply to discharge the fit person order. She submitted that the birth father could—

(a)    offer a home to [the infant] for life;

(b)    offer [the infant] a home which would address her cultural needs;

(c)    demonstrate he was financially independent;

(d)    demonstrate stability, in that he had a partner of some five years’ standing and has stable accommodation and a stable job in England; and

(e)    offer [the infant] a supportive, close family network.

9 Advocate Brehaut referred me to Re S (a child) (Adoption proceedings: Joinder of father) (3), referred to in Re H and G (Adoption: Consultation of unmarried fathers) (2), in which Thorpe, L.J. stated ([2001] 1 F.C.R. 158, at paras. 20–21):

“20. The terms of the 1984 Rules seem to me to be continuingly apt in conferring on the court an unfettered discretion. There will undoubtedly be cases in which the court will exercise that discretion against joining a natural father. An extreme and obvious instance would be the mother whose conception was as a consequence of a violent rape. But in a case such as this, where there is a history of relationship between the parents and where the father has intermittently but transiently sought to play a part in the child’s life, it seems to me that a judge acts wisely in ensuring that at least the father has notice of the proceedings.

21. The climate has undoubtedly shifted since the mid 1980s, and the shift is towards according greater involvement of natural fathers, even though there has been no marriage and even though there has been no formal order of parental responsibility.”

10 The father urged the court to accept that in relation to the changing climate and the increasing recognition of the rights of the unmarried father that I should exercise discretion in his favour and grant him party status in the adoption proceedings. Advocate Brehaut submitted that it was “unfortunate” that the birth father “was not notified of the fit person application” when that application originally came before the Court “since it appears that he was relatively easily identified in relation to these proceedings and it is submitted that the failure to notify him has had a seriously detrimental impact on his legal position.”

11 In regard to this latter submission, I have already set out the chronology of how the identification of [the infant’s] birth father progressed and how his identity was not known until a few months after the commencement of these adoption proceedings and that, at the time of the fit person proceedings, another man had been identified as [the infant’s] father. But when these tests proved negative, neither the Department nor the guardian in those proceedings had received any information which could have led them to identify the birth father. The only persons who had that knowledge were the birth mother and the birth father themselves and even they were uncertain until DNA tests were carried out in June 2009.

12 Advocate Brehaut urged the court that as there was nothing known to the detriment of the father the presumption should be one of joinder. She referred to the case of Re G and B (1) which she submitted demonstrated that the father was entitled to be “fully assessed as a carer for the child.”

13 During the course of this application I was advised by the Department that it had carried out a form of assessment of the father (and in fact had done so by November 4th, 2009) but the assessment had not been committed to a written form—“there were no guidelines” to do so. It is my understanding that that assessment concluded that the Department did not consider that the father was able to safely parent [the infant]. I asked for further clarification but unfortunately the relevant social work practitioner was unwell and the relevant file was not at court.

14 Bearing in mind the lack of detailed information relating to the Department’s assessment of the father, I have not been able to factor in what I was told was a negative conclusion to the assessment into my decision-making on the applications. With this in mind, I have therefore had to consider whether there should be an adjournment at least for further information on the assessment to be provided and I will deal with this later in my judgment.

    “(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

    (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.”

16 The identified issue in this case was whether there is a “family life” which would not be respected if I decided not to allow the father’s application to be joined as a party to the adoption proceedings, and, if I determined there was no family life to be respected, what relevance that had.

17 In this case the father and child have never had any contact with each other. The father’s recounting of the circumstances of the conception left him uncertain as to which of a number of men (on his version) could have been the father. It was only when he was contacted by a social work practitioner in early summer 2009, that he started to co-operate with the process, despite having been told by the mother that she was pregnant (although she did not tell him then that he was the father) and two years ago when she approached the father “and accused” him of being the father. In his advocate’s submissions the father says this was a “throw-away remark” but it was obviously sufficient to remain in the father’s mind and yet he took no steps to ascertain either the whereabouts of the child or indeed the child’s well-being. Even when the mother approached him in the street in 2009 and ascertained his phone number, the father waited until he was contacted and he did not initiate any enquiries of his own.

18 In Re H and G (Adoption: Consultation of unmarried fathers) (2), the court considered the impact of human rights legislation on the position of unmarried fathers. The court considered that not only was art. 8 engaged but also art. 6—“the right to a fair trial”—on the basis that if the father was a person who was found to have a family life with his child then art. 6(1) would apply.

“The first issue is whether there is a family life in respect of which there may be a breach. The European Court of Human Rights accepted in B v. UK, [2000] 1 F.C.R. 289 that it is legitimate to treat married and unmarried fathers differently. Not every natural father has a right to respect for his family life with regard to every child of

and in those two cases on the facts as they presented themselves to the President, she reached different conclusions on their respective facts. In Re H she held that the father did have the right to be given notice of the fact of a pending adoption application, but on the facts of Re G these facts were “less strong” and she directed that notice need not be given. In Re H the parents had never cohabited, and whilst they had known each other for a period of seven years, the relationship had been “short of cohabitation” which did at some point develop into a decision to become engaged to be married. Subsequently, the relationship concluded and the father and mother lost contact with each other and the father had not known the mother was pregnant or had given birth to his child.”

“There were no exceptional factors to show, in the words of [Kroon and others v. The Netherlands (1994), 17 EHRR 2634], that the relationship had sufficient constancy to create de facto family ties. Unlike the case of H, there is nothing substantial to show that the father of G has a right to respect for his family life with G. In my judgment, this relationship is to be found on that part of the spectrum that does not come within the concept of family life within Article 8.”

21 [The putative father] neither had a relationship with the mother at the time [of conception] nor before, nor indeed since and even when he knew there was a possibility (and I accept it was no more than that) that he was the father, he took no action to substantiate the possibility or indeed to enquire after the child.

22 I am satisfied that in these circumstances there is no evidence of a family life between this child and this father which could be breached. This child was four years old before this man demonstrated any interest in her and even then he would not have done so if it had not been for the fact that proceedings had been issued.

23 I directed that the father be given notice of the fact of the adoption proceedings in order that the facts as to how he came to be the child’s father and the background to the relationship could be investigated. These now having been disclosed, I am satisfied the facts as disclosed do not amount to de facto family life.

24 Since the father does not have a right to respect for his family life, “no obvious issue arises under Article 8 which engages Article 6(1)” (Re H and G ([2001] 1 F.C.R. 726, at para. 52)).

26 This decision is based on these particular facts and no doubt other similar cases involving the same application by other unmarried fathers may fall elsewhere on the spectrum, depending on their own individual facts.

27 I am also satisfied that in these circumstances I would not grant the father leave to apply to discharge the fit person order. This is a child whose overwhelming need is for permanence and stability. The child has been in the care of the Department for four years and in the care of [the adoptive applicants] since August 2006. Taking into account my finding that there is no family life capable of respect between this child and this father, and the factors that have led me to conclude this, I am satisfied that there would be little merit in the father’s application to apply to discharge the fit person order.

28 I am satisfied that an adjournment for an assessment of the father would not be helpful in the circumstances outlined above, and I am satisfied that I can proceed to dismiss both of the father’s applications. If I had determined there was a family life capable of being respected between this child and the father I would have considered an adjournment but, as I say, on the basis of the conclusions that I have reached I do not do so.