High Court upholds mother’s autonomy in foreign national relinquished baby case

Friday 8 July 2016

The High Court of the Family Division has upheld the decision of a young Hungarian mother to give her baby up for adoption in the UK and confirmed the very limited circumstances in which a woman’s decision to give her child up for adoption should engage the care provisions of the Children Act 1989.

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The mother, who had been living and working in the UK for over a year, had sought to have a termination upon realising she was pregnant but was too late to do so. She made a decision to place her child for adoption immediately at birth without having any skin to skin contact with the child.

The Local Authority applied for a care order in respect of the eight-month-old baby asserting that by giving her child up for adoption at birth the mother had caused her child “significant harm” such that a care order was required. The Local Authority plan for the eight-month-old British-born baby was for her to be adopted in Hungary.

Mr. Justice Baker dismissed the Local Authority's applications and paved the way for the baby to be adopted in the UK in line with her mother’s wishes. The Court noted that where a mother concludes she is unable to look after her child, “a civilized society must accommodate such feelings and decisions”.

The decision confirms that the fact that a baby had been given up for adoption will not by itself satisfy the threshold criteria for making a care order under the Children Act 1989 s.31(2) and in particular that a mother who reaches a difficult decision that she is unable to keep her baby, who notified the local authority in advance and made responsible plans for the relinquishment of the baby is unlikely to be said to be acting unreasonably.

The mother in this case has been the subject of successive High Court proceedings for over nine months.

In the first series of litigation, the High Court gave comprehensive guidance on how local authorities should deal with cases concerning relinquished children whose parents are foreign nationals. The judgment for the guidance case of Re JL and AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam) is available here.

The judgment for Re AO (Care Proceedings) [2016] EWFC 36 is available here.

The case has been reported in the press, including in The Guardian.

In both High Court proceedings, Gráinne Mellon was led by Frank Feehan QC and instructed by Powells Law on behalf of the mother. Gráinne is a member of the Garden Court Chambers Family Team.

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