Introduction
At the end of 2011, the British government announced it was drafting in a group of adoption experts with a view to overhauling the assessment process for prospective adopters in the UK.Footnote 1 The process of adopting a child is seen to have become overly cumbersome and restrictive with the potential to put many off adopting. The idea of adoption itself has been under increasing scrutiny, with questions being asked as to its place in the twenty first century era of genetic or biological truth, and human rights being called upon to assist in seeking out this “truth”.Footnote 2 Unsurprisingly, of course, at a global level, adoption is not seen in the same light by every legal jurisdiction. Some countries do not favour adoption as it has traditionally been understood in the UK.Footnote 3 This understanding involves the biological family being completely legally replaced by the new adoptive, social family. Parental responsibility of biological parents is extinguished; the adopted child ceases to be a child of his or her biological parents and becomes the child of the adopters as though he or she was their legitimate child.Footnote 4 This has implications for our understanding of personal autonomy, identity and integrity, notions said to be protected by Article 8 of the ECHR's right to respect for one's private life.Footnote 5 For the majority of women, becoming pregnant, remaining pregnant, giving birth and being the social mother, all follow one from the other. There has been a massive shift in attitudes towards children born outside of marriage, including far less pressure in general on girls and women, because of social conditions or stigma, to give a child over for adoption. However, a sizeable number of people still consider stigma attaches to unmarried girls or women being pregnant and being mothers and these may be tied to cultural reasons.Footnote 6 If the pregnancy is the result of a one night sexual encounter, a result of rape, incest, or other abusive relationships, a woman may want to give up the child for adoption regardless of any lack of social pressure she may or may not feel as an unmarried mother in general. She may not want to have anything to do with the child because of the memories it conjures up in her mind.Footnote 7 This, together with the legal availability of birth control, abortion in certain circumstances and reproductive technology developments, means that there has been a reduction in the number of babies, that is, children under twelve months, being placed for adoption in the UK.Footnote 8 Given that adoption usually takes place following care proceedings which are mainly involuntary and contested, these figures may not be surprising. Even given the reduction in adoption figures, it is rarer still for babies to be voluntarily relinquished or “given up” by the mother for adoption. From that small number, it is extremely rare for a baby's existence to be unknown to his or her biological “father” and to the wider biological family of the birth giver. No statistics exist as to the exact numbers.
There are different interpretations of the personal “choices” made by girls and women who seek to have their babies adopted in secret. The focus of this article is to examine these interpretations by reference to English court cases deciding whether or not a local authority is under a legal duty to make further inquiries and then inform the biological father, and or wider biological family of the mother, as to the child's existence to see if they may be suitable adopters of the child. Developments in European human rights law's protection of a right to respect one's private life can be interpreted in different ways but three positions are argued here to guard against an erosion of women's confidentiality and privacy in these circumstances. These are all consistent with a version of personal identity which is arguably less restrictive and coercive than some others. First, women's choices of concealment should be accepted with respect, rather than perceived as inauthentic and therefore impermissible, in keeping with Article 2Footnote 9 and Article 8 of the ECHR. Second, the right to respect for family life protected by Article 8 of the ECHR of any wider biological family and father is not contravened by allowing women to give birth discreetly. Third, openness and transparency as to the exact knowledge of one's parents in this context is not necessary for a child's identity rights to be legally protected.
I. Respecting a Woman's Choice in Giving Away a Child?
A. A New Child's Existence
A new born child's existence and his or her identity is enshrined as a legal public act through birth registration which will reveal the date and place of birth and name of the birth giver or mother.Footnote 10 It has long been the case that the father will be named if the couple are married and, following recent changes to the law, which are still to be implemented, an unmarried father will also be named unless the case falls within a list of exceptions. The circumstances discussed here should fall within such exceptions.Footnote 11 A girl or woman who gives birth is the legal mother, regardless of whether she is the genetic parent, is a surrogate or wishes to have the child adopted.Footnote 12 The principal context of adoption is care proceedings. In seeking placement of the new born child, adoption agencies and the relevant local authority are embroiled in a network of regulations and seek to provide surroundings which are in the child's best interests.Footnote 13 The most relevant legislation is the Adoption and Children Act 2002 (the ACA 2002), s. 1(2) of which states that “the paramount consideration of the court or adoption agency must be the child's welfare, throughout his life”. A successful adoption order is estimated to take up to 12 months on average but varies according to the age of the child.Footnote 14 In the unusual situation analysed here where a girl or woman relinquishes a new born child, the adoption procedure is usually swifter. If there is no dispute from the birth mother, and the biological father is unaware of the existence of the child, it seems self explanatory that proceedings that are not contentious can be dealt with more quickly. In keeping with the ACA, preference is given to avoidance of delay in the placement of a child in a stable, permanent home all of which is considered by legislation and judicial interpretation to be in the child's best interests. The Registrar General makes an entry in the Adopted Children Register which supersedes the entry relating to that child on the birth register. A full certificate from the Adopted Children Register is used as the birth certificate – it is clear from that that the child has been adopted.Footnote 15
The starting assumption is that the best person to bring up the child is, what the court often calls, the “natural” parent, provided the child's moral and physical health are not endangered.Footnote 16 However, adoption is permanent and provides the child with a new family and all the legal rights which go with this new identity.Footnote 17 A checklist is set out in the legislation of factors for the court to consider when making an adoption order. These include: the likely effect on the child throughout his or her life of having ceased to be a member of the original family and become an adopted person; the relationship the child has with any relatives; the likelihood of any such relationship continuing and the value to the child of its doing so; the ability and willingness of any of the child's relatives to provide the child with a secure environment and the wishes of the child's relatives.Footnote 18 In the current era of human rights, it appears to be generally accepted that if we live in a liberal democracy, everyone is legally entitled to equal rights, including the right to make their own choices in life, which should not be dictated by the state or other people against their will. If people are able to make decisions and plans of their own, in the sense of choosing how they want to live their lives, there is more than a strong possibility that many of their choices will be met with disapproval by others. Many human rights relating to this freedom of choice are, of course, qualified rights. In the ECHR, rights to respect one's private life can be qualified by, amongst other things, the rights and freedoms of others. This can impact on the choices women are permitted to make. What has been called the “ideology” of motherhood has been said to construct both maternity and motherhood in terms of connection, physically and emotionally, and in ways which can be seen to constrain women's choices.Footnote 19 Whether maternity and motherhood are natural phenomena to be reclaimed and celebrated for womankind,Footnote 20 or to be overcome and transcended,Footnote 21 or to be constantly interrogated,Footnote 22 depends on one's feminist, or other, perspective. For many feminists, pregnant women, and possibly all women, have not fitted the mould of the traditional idea of legal persons capable of making fully informed choices, in the Kantian traditional sense many see as evident in our legal system.Footnote 23 Therefore the “connection” present in maternity and motherhood means that some have trouble viewing pregnant women or all women as persons – or human beings – in their own right, as legally and philosophically understood, with choices to make about ways of being and living.Footnote 24 Whichever view is taken, any choices women make about motherhood are generally presented as ones to be made before pregnancy by choosing to prevent pregnancy, or during pregnancy in the form of a termination. Little attention has focused on choices made by girls and women who remain pregnant, give birth, and then wish to conceal the birth from the “father” and or/wider biological family and have no further role to play in the child's life.
B. Personal Autonomy of the mother
In some European countries, anonymous or discreet birthing conditions exist for women who have given birth but do not wish to keep the child. In France, a legal distinction exists between a woman who gives birth and a mother. Anonymous births are legally permitted: a woman can enter a hospital registering herself as X, give birth and leave. This situation has come under review by the European Court of Human Rights (the ECtHR). In Odièvre v France, a majority of ten judges to seven, upheld the French legal provisions allowing anonymous birthing.Footnote 25 The unsuccessful adult applicant had been born of a birth giver registering herself as X. She alleged that because her birth had been kept a secret, with the result that it was impossible for her to find out the full identity of her biological parents and any siblings – with particular emphasis placed on arguing for her right to exact knowledge of her biological mother's identity – this amounted to a violation of her ECHR Article 8 right to respect for a private life. The issue in the case is presented in terms of the applicant's right to access information about her origins as an interpretation of this provision. The system was further considered in Kearns v France Footnote 26 where the birth giver, an Irish citizen, had travelled to France to give birth anonymously and subsequently changed her mind after registering as X. The issue there was whether the two month period available to a birth giver in France to change her mind was proportionate. The ECtHR noted that the applicant had been 36 years old when she gave birth anonymously. Her application was unsuccessful because the time limit was considered to be sufficient to allow a biological “mother” to reflect on her actions. Emphasis was placed on child-welfare professionals' studies showing it is in the child's interests to enjoy stable emotional relations with a new family as quickly as possible.
In relation to a birth giver's right to confidentiality, privacy and bodily and psychological integrity in these circumstances, two opposing positions are presented in the Odièvre case and related empirical studies into the practice in France.Footnote 27 It is argued, on the one hand, that these women give up their children to protect them, as a gesture of love.Footnote 28 The children are safeguarded from infanticide and abuse because anonymity was a choice for the birth giver. A woman's right to give birth anonymously is a fundamental freedom, linked to privacy,Footnote 29 and is a right to renounce forever the motherhood of a particular child.Footnote 30 Thus refusing motherhood is a valid exercise of a woman's freedom enshrined in a legal right to have her own life and live it as she chooses. This idea involves ideas of privacy including potentially the woman's privacy to withhold the fact of the birth from others. Such choice may be, in practice, tied into safeguarding, protecting, or offering a better life to, children, and not necessarily based on what might be selfishly preferable to the woman concerned. Considerations may include, for example, the possibility of abuse of the newborn child from others close to the woman. But, ultimately, regardless of the reasons, it is the individual woman who makes the decision to refuse motherhood. The French government has argued that the aim of permitting anonymous birthing in France is to prevent infanticide, abortion, and babies being abandoned. Further, it is said to alleviate a woman's distress when she does not have the means to bring up the child.Footnote 31 On the other hand, the contrasting empirical study emphasises the hardships of various kinds by the women involved. The emphasis reflects not a right to choose but a lack of choices and resources and evidence of no “real” autonomy. Fear of parental reaction, pressure by parents from a religious or conservative background, personal problems, an inability to cope with another child, domestic violence and large families in economic difficulties are all expressed to be considerations.Footnote 32 For those sympathetic to such findings, it seems the only moment to exercise choice in relation to motherhood is the moment of confirmation of pregnancy. Those women who enter into a state of denial, or fail to confront a decision on abortion, might be regarded as powerless and paralysed.Footnote 33 The applicant in Odièvre used this argument, claiming that women who give birth anonymously are not exercising a woman's right but are making “an admission of failure”. In her critical view, the French legal position of allowing a woman to act as if she had never given birth is a “legal fiction”.Footnote 34 In the applicant's arguments, the distress of such women could be addressed by providing the necessary help or enabling them to make their children available for adoption. However, with changing views on adoption and contact with the birth family, including human rights arguments on children's identity, the existing structure of adoption's permanency and replacement of the biological parents is being questioned in the name of human rights.Footnote 35
What does it mean to make a permissible choice, one that is safeguarded by Article 8 as protecting one's personal autonomy and integrity, in these circumstances? It has been argued that in English law, and in the general understanding of “womanhood”, the “idea that a woman, after giving birth, might make a rational decision not to become a mother is not entertained.”Footnote 36 In adoption or surrogacy situations, her decision is framed in terms of the welfare of her child; she may be seen to be acting as a “good” mother if she appears to be sacrificing her motherhood for the good of her child. When put in terms of her exercising a real choice about her life, however, her actions become recast as selfish and her “abandonment” of her child damages his or her welfare. As O'Donovan points out, the conventional reaction to a woman who “gives away” her child is one of distaste, even horror. This is an “unwomanly” woman, one more like the wicked stepmother of fairytales than a “real woman”.Footnote 37 Even those sympathetic to her plight may tell the woman that the decision to renounce motherhood after giving birth is a debilitating action. In the UK, a woman is unable officially to give her child over for adoption within the child's first six weeks of life.Footnote 38 When it is said “you will regret that later”, or “it is not natural” the message is that the self is divided against the self, that the proposed action is inauthentic.Footnote 39 The stated purpose of European human rights law is to enable a man [sic] to be “free to shape himself and his fate in the way that he deems best fits his personality”.Footnote 40 This is in keeping with a self-determining notion of personal freedom, the autonomy to choose for yourself how you decide to live. In contrast to this notion is an idea of personal freedom as the ability to make a self realising choice which directs you to discover and to be that which you already are, through a process of self-discovery and realisation to recover the lost, real, authentic and true you.Footnote 41 This type of “essentialism” has a long history from Aristotle through to Marx, and to modern communitarianism, some versions of radical and cultural feminism, the post-liberal self, and can also be evidenced in much of the popular personal development industry and the therapeutic state highlighted in diverse work.Footnote 42 The basic assumption built into the ideal of authenticity is that, lying within each individual, there is a deep, “true self” or “real core of identity”.Footnote 43 The ideal of authenticity asks you to get in touch with the real you, achieving genuine self-knowledge and to express your inner traits in your actions in the external world. It is only by expressing your true self that you can achieve self-realisation and self-fulfilment as a human being. But the constant effort of seeking authenticity is exhausting, can be frustrating and produce a sense of failure for non-achievement. If this is an account of moving towards always making the “right” decision, it may mask coercion, including by the state.
A sense that women who relinquish their children are committing an act of self-betrayal and personal disintegration,Footnote 44 is implicitly to be found in policy and literature encouraging birth givers to keep their child. The assumption seems to have become: if a girl or woman does not want a child and becomes pregnant, she will have a termination.Footnote 45 Relinquishing a new born child is different from reproductive choices before or during pregnancy because a new, living, breathing, separate human being exists with a life of his or her own to live. But that life has still to be lived socially. Relinquishment does not mean that the woman may not think about that child every day of her life but it does involve an acknowledgement of choice to do something which many may find unsatisfactory. Empirical research shows that, aside from women who do not seek an abortion for personal, including religious, reasons, or cannot do so because of legal prohibitions, some women enter into a state of denial; others, aware of their pregnancy, cannot cope with the steps necessary to terminate.Footnote 46 A relatively recent study of abortion decisions shows that young women from areas of social deprivation are more likely to become pregnant and are less likely to have an abortion. In contrast, young women from more affluent backgrounds are less likely to become pregnant, but once they do, are more likely to terminate the pregnancy.Footnote 47 Other scholars in different contexts have pointed to the vulnerability of many unmarried mothers, including in terms of their educational disadvantage, their young age and social class.Footnote 48 Such studies indicate a need for focusing on these issues as a matter of social justice requiring further investigation. In the UK,Footnote 49 it is not legally possible to give birth anonymously. Giving birth in secret and leaving the child involves the commission of at least one crime.Footnote 50 What is still legally permitted is a situation where the birth giver leaves the child at the hospital, having given her name and details, and gives the baby over for adoption. The question then arises whether the local authority has a legal obligation to inform the father or any wider biological family. This means that it is ultimately a decision that the state, and not the woman, makes. It is to some of these English court cases where judicial concern is shown for the women's situation that I now turn.
C. “Much humanity and wisdom”
Where very little is known factually about the biological father, particularly his identity because the mother refuses to provide information, English courts have made clear that an inquisition will not take place to force the woman to reveal information she is keeping secret. The local authority is not under a duty to make further inquiries. The cases concern unmarried mothers, as the legal position varies depending on whether or not the couple are married as will be more fully explored in part two below. Usually these involve factual scenarios where an unmarried woman conceals her pregnancy from everyone, does not seek antenatal care, presents herself at hospital in labour, gives birth and shortly after leaves hospital without seeing the child.Footnote 51
Where the mother knew the identity of the father but refused to disclose it saying that both of them supported the child's adoption and that she wished to protect the father from embarrassment and any disruption to “his own family”, the court told the local authority they were under no further obligations.Footnote 52 In Z County Council v R, the mother opposed the authorities contacting her relatives. It was held that no notice ought to be given to the wider birth family. The following words of Holman J. were “applauded” in a later case by Munby J.:
Although no statistics are available, many children must have been adopted over the years, outside their birth families, and with no knowledge by, or investigation of, other members of the birth family. Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth … If [the mother's confidentiality] is now to be eroded, there is … a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies … There is … a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason so wishes.Footnote 53
The judge accepted the mother's views that the relatives could not and would not care for R; that to reveal the information would create huge problems and disruptions for her family, and that there would be no future for R within a family disrupted in this way. Thus informing the wider family was likely to risk jeopardising the current and helpful co-operation of the mother with the adoption agency and, perhaps, also R.Footnote 54 Accordingly, he held that it was not in the child's interests to reveal the information. It had been made clear by the mother right from the start, when she told the local authority about the baby, that she wanted R's existence to remain a secret from the wider family. The judge stated that it would therefore be a grave interference with her right to respect for her private life if this information was revealed to her family by the local authority.Footnote 55 Issues of the child's and the wider family's rights to a family life were analysed and the judge balanced these with the mother's right to privacy. For him, the balance came down in favour of the mother in terms of preserving her confidence.Footnote 56
Whilst Z County Council dealt with informing the mother's wider family, the idea of compelling the mother to identify the father, so that he may be informed, was explored fully in the case of Re L. Munby J., giving judgment in this case, directed that no further steps be taken when a mother had twice refused to identify the father. This was so even though, it is reported, it is generally understood she could have identified him albeit that they had had a relationship of no more than a few weeks. He applauded Holman J.'s “much humanity and wisdom” in Z County Council. In his view, the idea that a mother should be forced, through judicial legal power, to try to make her reveal the identity of the biological father and the nature and extent of her relationship with him, by, for example, cross-examination, was “deeply unattractive and unsettling”.Footnote 57 As he puts it:
In relation to matters as personal and intimate as this we should be wary of seeking to open windows into people's souls.Footnote 58
The whole process smacks too much of the Inquisition to be tolerable.Footnote 59
The decision in this case has been described by Arden L.J. as effectively meaning “there is nothing in practical terms which can usefully be done” when a mother refuses to identify the father.Footnote 60 As Holman J. had expressed it in Z County Council, there was no power to compel the mother to reveal information. In Re L, it was doubted whether, as a matter of law, the court had no power to order a mother to disclose the identity of her child's father. Instead, Munby J. points out, the powers of a judge exercising inherent jurisdiction are “theoretically limitless”, but “whether it is proper, whether it is appropriate and prudent” to do so was queried.Footnote 61 He elaborates:
….And suppose that I was satisfied to the criminal standard that she was telling lies. Could it seriously be suggested that she should be punished, even sent to prison? Surely not. Punishment would surely be unthinkable …And it is not to be justified merely because we believe, however strongly, that what we are doing is being done in the best interests of the child … We can reason with someone in the mother's position. We can seek to persuade. But we should not seek to force or to coerce...the matter is not to be determined on the say-so of a mother, but we have to face the realities. And the reality here … is, I am quite satisfied, that we have to accept what the mother has told us …
Whilst it may be unfashionable to say so, this respect for a mother's wish to stay silent, not impart information and retain her own confidentiality and privacy, is welcomed in the face of the growing trend focusing on freedom meaning authenticity and unallowable, impermissible choices which could erode the privacy and confidentiality some birth givers seek.Footnote 62 Such views need to be treated with great caution particularly with the growing emphasis on biological father's rights and children's identity rights which are in danger of being misinterpreted to the detriment of the mother as will be explained in the next two sections. A mother's right to life, health and integrity are all protected under Article 2 and Article 8 of the ECHR. To ensure those rights continue to be protected, it is important that a mother is able to retain the confidentiality of concealing her pregnancy from others and giving birth discreetly, but safely, with health care and social care professionals' assistance. In her concurring opinion in Odièvre, Judge Greve argued that “no society should in the name of the promotion of human rights be forced to leave a woman with abortion as the only apparent safe option.” If an unmarried mother knows that the child's existence will be revealed and her confidentiality not respected, this may result in such an outcome. As Helen Reece has argued in a different context, obliging highly vulnerable young mothers to disclose details of their sex lives is a cause for concern.Footnote 63
Dame Elizabeth Butler-Sloss has been critical of confidentiality arguments stating that:
The degree of confidentiality offered to mothers who place their children for adoption with local authorities … needs to be reviewed as a matter of some urgency. … A considerable degree of confidentiality is clearly important but it ought not, in the majority of cases, to deprive the father of his right to be informed and consulted about his child. In my view, social workers counselling mothers ought to warn them that, at some stage, the court will have to make a decision in adoption proceedings as to whether to add the father … to the proceedings … If the mother refuses to disclose the identity of the father, her reasons must be carefully considered and, unless those reasons are cogent, it would be wise for the local authority to seek legal advice …Footnote 64
This reflects a growing trend which could be argued to provide more support for father's rights, regardless of the marital status of the couple. One of the arguments for supporting such rights is to be found in Article 8's right to respect for one's family life. Increasingly, arguments are made that this means that unmarried men have a right to family life with their biological offspring. In the context of concealed births, some may seek to say that the biological father or wider family have a right to family life by virtue of biology. It is to that issue that I now turn.
II. Concealed Births and a Right to Family Life
In Lebbink v the Netherlands, the ECtHR decided that “mere biological kinship without any further legal or factual elements indicating the existence of a close personal relationship” is insufficient to establish a right to family life for a biological “father”.Footnote 65 As has been widely noted and analysed, notions of the family and fatherhood have in many ways changed beyond recognition in recent times, with mixed responses, opposition or support to these changes.Footnote 66 Corresponding human rights implications from the ECHR and the Human Rights Act 1998 and their judicial interpretations on the family and fatherhood have also developed over the last few decades. My purpose is not to review all the case law from the ECtHR or the English courts on family life and fatherhood. Nor is it my aim to analyse the role of fatherhood generally and the way it has seemingly changed over the last few decades: including, as Sally Sheldon expresses it, “the geneticisation” of fatherhood.Footnote 67 These subjects are beyond the scope of this article. As my Introduction explains, my main focus is to show how Article 8 of the ECHR has been developed and interpreted in ways which do not need to, and should not, erode women's confidentiality and privacy in the very specific context of concealed births. So, instead, this part evaluates how a human right to family life is dealt with by the English courts in specific cases which directly impinge on issues to be resolved in concealed birthing cases. As Lebbink makes clear, biological “fatherhood” does not establish a right to a family life under Article 8. One of the key factors in establishing such a right's existence is, in contrast, cohabitation.Footnote 68 As such, an unmarried father who does not know of the existence of any child, and therefore has never cohabited with the child, may not on first glance appear to have any such right. Even if a right to family life is established for any unmarried fathers, it can, of course, be justifiably interfered with, if such interference is in accordance with law, serves a legitimate purpose and is necessary in a democratic society, as set out in Article 8(2) of the ECHR.
A. Married biological parents
The legal position varies depending on whether or not the couple in question are married. In the UK, if the woman seeking to conceal her birth and place the child for adoption is married, the court's discretion is required to be exercised to vary the normal practice of a husband, as the presumed father, being a party to any care and subsequent adoption proceedings. A very recent case, judgment being given by the Court of Appeal on 17 March 2011,Footnote 69 made clear that the court would not sanction the withholding of information from the married father “in anything other than exceptional circumstances where there are … strong countervailing factors.”Footnote 70 On the facts of the case, there was no evidence to support the mother's case that revealing the child's existence would affect her husband adversely: “[t]his was not the sort of harm that would justify keeping [the father] ignorant of his son's existence …”Footnote 71
In this case, the mother who wished to conceal her pregnancy and the child's existence from the father was in her 40s, had been married to him for 25 years, and they had adult children together. They are described by the court as being of Sikh origin,Footnote 72 and having previously lived in Afghanistan. The father had mental health problems which appeared to have originated from his experiences at the hands of the Taliban in Afghanistan in the late 1980s. The mother alleged that this made his behaviour unpredictable and sometimes violent: domestic violence had been reported to the police in the past. The first instance judge states “[a]lthough it seems incredible, M did not become aware that she was pregnant until the GP sent her for an ultrasound … [b]y then it was too late for an abortion.”Footnote 73 In his view, “nothing less than a significant physical risk … must clearly be demonstrated” before deciding not to inform a married father of the existence of the child. At the Court of Appeal, it was decided that the legal authorities do not impose a requirement of significant physical risk. The Court of Appeal did not want to define what may make a case exceptional enough to justify departing from normal principles. In any event, this case was incapable of satisfying any test of exceptionality in their view and so the father needed to be informed.Footnote 74 Despite the facts being very different, including the mother claiming her husband was not the father, but that the child had been conceived following a rape, a 2003 case was also unsuccessful at achieving confidentiality in birth giving and giving the baby over for adoption without the husband's knowledge.Footnote 75 The Court of Appeal giving judgment in the case seemed to doubt the mother's credibility.Footnote 76 Even though it is a remote possibility and “ … hard … to envisage an adoption process ever legitimately proceeding without the knowledge of, and consent being sought from, a parent with parental responsibility”,Footnote 77 it is still a possibility. It is surely significant, in an era of family life rights for fathers, that exceptional circumstances may justify keeping a married father who has had a long relationship, and other children, with the mother from knowing of his child's existence.Footnote 78
B. Unmarried biological parents
Where the couple are unmarried, the ACA 2002 permits the placement of a child for adoption and the making of an adoption order without the consent of, and without notice to, a father who does not have parental responsibility. However, the court has power to direct such a father to be joined as a party to such proceedings. The court has an unfettered discretion which is to be exercised having regard to all the circumstances in a manner that complies with the ECHR.
Thorpe L.J. in Re S (a child) Footnote 79 refers to the changing shift in attitudes to the role of unmarried fathers:
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 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. 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 had been no formal order of parental responsibility. The arrival of the Convention probably does not greatly impact on this discretionary balance. But it is a factor that the judge was not only entitled to take account of, but was wise to take account of.Footnote 80
It seems if a family life can be established and none of the qualifications to Article 8(2) apply, then, the father will be contacted.Footnote 81 It is sometimes assumed for the sake of argument that a father's Article 8 family life rights are engaged.Footnote 82 Case analysis shows that the significant factors which militate in favour of disclosure are a relationship of some duration, cohabitation, which itself is said to illustrate “sufficient constancy to create de facto family ties”,Footnote 83 and the couple having other children together.Footnote 84 By contrast, the court is unlikely to order disclosure where the child is conceived as a result of a one night sexual encounterFootnote 85 and where there was “a real danger of very serious violence”.Footnote 86 Even where a couple had been engaged to be married and had a seven year relationship, it was decided that the facts were not strong enough to join the father who had no family life right under Article 8.Footnote 87 Significance was attached to the fact that the couple had never cohabited, so that the “exceptional factors … that the relationship had sufficient constancy to create de facto family ties” were not present.Footnote 88
C. Where the parents have cohabited or the child has a sibling
In concealed birth cases where the father has cohabited with the mother and or where there is another sibling by the same parents, it seems more likely that the court will order that the father needs to be told. So where the mother had previously cohabited and had another child with the father with whom the father had contact, notice had to be given to the unmarried father.Footnote 89 The mother did not wish the father to be informed of the adoption proceedings. She argued that their now platonic relationship, and his existing relationship with their older child, would be jeopardised if he knew of the new birth which she had concealed from him. Whilst each case needs to be decided on its own merits, in this case it was stated that particular weight seems to be given to the effect on the child if the father became aware of the child's existence and whether it would be better for the child if the father found out at this stage.Footnote 90
These cases seem to indicate a balancing of rights of all the relevant parties. For example, a father's continued relationship with the older child and evidence of an attempted reconciliation between the parents was said to illustrate a genuine commitment to each other and their ongoing relationship. Yet balanced against this is the confidentiality sought by the mother. The desire of the mother for confidentiality and non-disclosure could prevail over notice to the father if there were strong countervailing factors. Evidence of a strong connection between a couple, and a family unit in existence, particularly with past cohabitation and an existing child, is compared to a breakdown of a marriage prior to the birth of the second child. Yet, even in such circumstances, a woman's right to confidentiality could have prevailed if there were strong countervailing factors. Examples of such factors include rape, or other serious domestic violence that placed the mother at serious physical risk. The court states however “there may well be other situations in which a father should not be informed of the proceedings and my examples are, of course, not exhaustive.”Footnote 91 Having said all this, as the court expresses it:
this raises the practical question of how to identify [the father]. In this difficult and delicate case, where this young mother has had to make the agonising decision to place H for adoption, I do not consider it just to require her by court order to disclose the identity of the father in circumstances in which she would be at risk of going to prison for her failure to comply … steps should be taken to notify the father of the adoption proceedings. I shall request the mother to give the name and address of the father to [the relevant local authority] and to the court. I shall also direct that the Child Support Agency, who have the name and address of the father … , should disclose that information to this court.Footnote 92
Such cases preceded the new regime under the ACA 2002 which came into force on 30 December 2005. Arden L.J. in Re C, a case which is discussed in more detail in Part three, confirms the position at the ECtHR, that an unknowing, unmarried father has no right to respect for family life under Article 8 of the ECHR. If the child's existence is unknown to him, he has no family life with the child and therefore there is no violation of Article 8.Footnote 93 In that regard, the situation where a mother wishes to relinquish the child immediately after birth is different to that of a mother who later in the child's life is deemed unsuitable in some way to care for the child by the state and care proceedings are taken. That situation is not the focus of this article because I am dealing with very specific circumstances of concealed births and their relationship with the development of autonomy and identity rights under European human rights law. However, in that situation, the child will have had a social relationship with the biological mother, invariably also her mother's wider biological family, and probably, to varying degrees of contact, with the biological father. Whilst the state places importance on the biological parents or wider biological family being considered as carers in these circumstances, important in the distinction is the existing life that the child has lived before being moved from the birth mother into care or fostering and onto adoption. It is this existing life that is more prominent in the ECHR personal identity rights' case law emanating from Article 8, and which, it is argued here, is the more consistent interpretation of identity, rather than emphasising blood and genetics. That case also makes clear that the Court's discretion is still retained following the enactment of the ACA 2002.Footnote 94 As Lori Chambers has recently argued, a woman cannot make a fully informed and free decision to carry a child to term and place him or her for adoption if she fears the intervention of the biological “father” when the child is born.Footnote 95 If a mother is forced to reveal who the “father” is, infanticide or abandonment could increase and, as Chambers points out, a mother, forced to notify a father might feel, for the sake of the child, that her only option is to discontinue adoption proceedings and retain custody against him. In this regard, Chambers refers to the US safe haven legislation which allows for anonymous abandonment immediately after birth, a situation most would consider much more extreme than that analysed in this article. The inconsistency in allowing abandonment without identifying fathers while insisting that a mother who does not abandon her child must name the father is noted. Footnote 96
So far, for unmarried women in a concealed pregnancy and birth situation, adoption without the “father” or wider biological family knowing has been sympathetically, humanely dealt with, largely in line with the mother's wishes. Those cases which directly examine the issue always express revulsion towards the idea of forcing a woman to reveal information about the father through cross-examination and penal notices. In terms of informing the “father”, there is little discussion of distinguishing the reasons for doing so. For example, ought the focus rest on fairness to him, in that he has a right to know about the existence of “his” child, or a right to be given the chance of arguing he is capable and willing to look after the child? Ought the focus to rest on a child's right to know the exact identity of his or her biological father or does the importance rest on being given the chance to be brought up by the biological father?
III. A Right to Know Everything About One's Parentage?
In adoption situations, arguments are increasingly being presented that a child has an identity right, as a matter of human rights law, most notably through an interpretation of Article 8 of the ECHR, but also as enshrined in the United Nations Convention on the Rights of the Child (the CRC). The CRC states that a child has “as far as possible, the right to know and be cared for by his or her parents.”Footnote 97 Regardless of the words “as far as possible”, some seek to use it to justify arguments for a child's legal human rights entitlement to exact knowledge of parentage.Footnote 98 As Choudhry and Herring have recently noted, in the context of paternity blood tests, the English courts appear to have gone too far in their interpretation of the CRC which is misguided. This is so particularly in the light of the ECtHR's jurisprudence on this matter which has not established such a right to identity through exact knowledge of paternity.Footnote 99 Whilst some could argue that in their view it is morally wrong for a child not to have this knowledge, some argue it is also legally wrong and prohibited as a matter of human rights law.Footnote 100 The moral wrong is said to be committed by preventing the offspring from leading a complete life in accordance with their “true” identity. This identity right is said to entitle a child to a personal history, to a sense of completeness through this knowledge and through being brought up by his or her parents or blood relatives. It seems to be assumed that without this knowledge, and experience, the child will be, always and forever, in some sense incomplete, lacking, and have an inauthentic or false sense of identity. The current social climate seems to base much support for keeping children with their biological families because of links to kinship and genetics. The assumption seems to be that it is in the child's interests to know exactly who his or her blood relatives are and that damage is caused and suffering created by withholding this information and from the child not being brought up by or amongst those relatives. Such arguments query how such a person will be able to make sense of their life if they do not know their genetic and or biological origin. How will they discover who they truly are? How can they realise what's already within them to become? It has recently been written that we love such things because they display a controlled environment in which the self is shaped to make sense of itself – the popularity of researching family history, the longing to be placed within an ongoing historical tradition where we have come from and where we belong.Footnote 101
A trend towards “biological truth” for the offspring has gathered momentum which could be interpreted as validating the self-realisation, authenticity, version of freedom already referred to above. Such a version is creeping its way into the legal sphere. It can, for example, be seen in the strong dissenting opinion of seven of the 17 judges of the ECtHR who gave judgment in Odièvre. This dissenting opinion highlights the child's identity right but in a way which, it is respectfully argued here, misinterprets identity which needs to be interpreted instead in line with the purpose of human rights law. Whilst it is established ECHR law that a right to respect one's private life encompasses a right to personal identity, the way the dissenters in Odièvre interpret this right is restrictive and constraining. The dissenting opinion points to the developing jurisprudence of Article 8 that is said to include the right to personal development and to “self-fulfilment” as part of the right to respect for private life.Footnote 102 The issue of access to information about one's origins is said to concern “the essence of a person's identity”, and is “an essential feature of private life protected by Article 8”. Being given such access and “thereby acquiring the ability to retrace one's personal history is a question of liberty, and therefore, human dignity”. As such, it is stated to lie “at the heart of the rights guaranteed by the Convention”. Although the mother's right is said to concern her personal autonomy, the dissenters found that the different interests involved had not been balanced but instead “the mother … has a discretionary right to bring a suffering child into the world and to condemn it to lifelong ignorance”. They make clear that, in their opinion, the right to identity – as an essential condition of the right to autonomy and development – is within the inner core of the right to respect of one's private life guaranteed by Article 8.Footnote 103 Notions of what identity means are presented in short phrases and sentences without explanations or any substantiated evidence of the importance of such knowledge to a person's identity. The dissenters' views chime with ideas of fixed, essential, core identity as self-realisation or authenticity, with its ideas of needing to know and therefore having a right to know everything about one's origins before one can be “complete”. They thus mask potential state coercion of individual self-determining free choice and identity formed through existence. Article 8 clearly provides a right to personal identity and in the later case of Jaggi v Switzerland,Footnote 104 the Court follows a line of cases which do make it clear that such a right includes a right, to some extent, to find out, or be enabled to ascertain, some knowledge surrounding one's parentage.Footnote 105 In Jaggi, the Court states that:
persons seeking to establish the identity of ascendants have a vital interest, protected by the Convention, in receiving information necessary to uncover the truth about an important aspect of their personal identity. At the same time, it must be borne in mind that the protection of third persons may preclude their being compelled to make themselves available for medical testing of any kind, including DNA testing.Footnote 106
In striking a fair balance between these rights, the ECtHR in Jaggi decided in favour of the 67 year old applicant whose right to personal identity was said to have been violated by not being allowed to exhume the body of his dead pututative biological father, to confirm through DNA testing that the man was his biological father. Without presenting any psychological evidence in support of its position, the Court took the view that an individual's interest in discovering his parentage does not disappear with age, in fact “quite the reverse”. Because the applicant had sought to establish this paternity throughout his life, the Court equated this to implying “mental and psychological suffering, even if this has not been medically attested”.Footnote 107
It appears we live in a quickly changing environment of developments in geneticism, bioethics, reproductive technologies, and a corresponding social change in attitudes towards adoption and bio-genetic links. Whilst these are not explored or investigated or sourced in support of the dissenters' opinion in Odièvre, or the majority in Jaggi, the judges' views there seem to rest on such unexplored notions.Footnote 108 Attitudes towards anonymity in relation to adoption have been described as having undergone a complete reversal in recent decades.Footnote 109 Although initially characterised by secrecy and concealment, openness about the fact of adoption is now considered to be good practice.Footnote 110 In the UK, the provision of anonymity for gamete donation in artificial reproduction techniques was abolished in relation to any donations from 1 April 2005.Footnote 111 Reasons given for this change depend in large part on ideas of personal identity equating to self-realisation, authenticity and truth as to one's parentage, reflecting a seemingly growing attitude that one is not “complete”, is deprived of a fixed identity, unless there is exact knowledge of one's genetic or biological origins.Footnote 112 Debates in parliament on this legislation, for example, illustrate the strong and emotive language used to suggest that children born following anonymous gamete donation may suffer “genealogical bewilderment” that the “right to identity is a right not to be deceived about one's true origins.”Footnote 113 For example, Baroness Andrews on presenting the relevant 2004 Regulations to the House of Lords for approval, stated that over the time when the previous law was in force, it became apparent that in adulthood some donor-conceived people “have said … very poignantly that not being able to find out about their origins has left them with a gap in the way they see themselves, a gap in their identity, in their ability to tell their own story – and we are, after all, story-telling animals – and an inability to make complete sense of their lives.” She continues: “[w]e feel it is now time ... to reflect the paramount rights of the child in these provisions as we are seeking to do consistently and in many other aspects of law and practice.” Whilst acknowledging that there are ethical and practical needs to balance the rights of the child with the rights of the donors “who make such a valuable gift of life”, it was felt that the offspring should have the right to access information about their origins “which will help them, if they so choose, to complete their life history.” For Lord Patel, in the same debate concerning anonymity in gamete donation, this is not just an ethical issue, it engages the right of children to know their biological identity. In England, the emphasis is placed squarely and firmly with the welfare of the child, which seems to include not only before they are conceived, but also when they become adults, as any information is only available when they reach adulthood at 18 years old, so would not seem to be about the rights of a child.Footnote 114 Additionally, “the powerful symbolic resonance” of incest and in-breeding leads to demands that children should have sufficient information to avoid sexual contact with their genetic relatives. In debates surrounding the enactment of the joint birth registration provisions for unmarried fathers, in the Welfare Reform Act 2009, reference was made to ideas that a child has a right to know who his or her parents are and a right to be acknowledged and cared for by his or her father. It is assumed that these rights exist and ought to do so as a good thing independently of the state of the parents' relationship.Footnote 115 Whilst some of these arguments have substance, exact knowledge of genetic or biological parentage is unnecessary to overcome them. Indeed, it has been noted that only 4% of children born of the women X ask for access to origins information that is legally available under the French law.Footnote 116 96% do not.
Examining such arguments in my context of the concealed birth and adoption situation, there is no knowledge on the part of the “father” as to the existence of the child, and the child does not know the identity of his or her biological father. Using and perpetuating genetic and biological views of what constitutes a child's identity right pits the child against a woman who wishes not to reveal the identity of the biological father; it risks making the adopted child feel he or she is living an inauthentic life, and that the child's “right to identity” is being contravened and damaged in some way. It could also be used, not only to argue for revelation of this information, but to make the woman feel her “morally wrong”, inauthentic choice in giving the child over for adoption is in itself impermissible and a contravention of human rights. It does not appear convincing that a child's best interests are served by forcing the mother to reveal information she does not want to disclose. If this becomes the legal position, the mother may feel forced to have an abortion or to keep a child against her (the mother's) will, with potential for care proceedings later in the child's life. In the context of debates and any future changes to the French law, it is stated that “if we were to go back on that possibility of anonymous birth, then some women would not go to the maternity hospitals but they might just give birth in the street or without proper protection.”Footnote 117 The arguments presented here are in favour of a woman's autonomy and identity right in the context of pregnancy, through the right to keep the fact of the pregnancy private, and on birth, in the context of giving birth and being able to relinquish the child on birth. However, this does not, in my view, mean that the child's interests are subsidiary to the woman's: there does not need to be a balancing of rights exercise or a conflict between the child's and the mother's rights if a human right to identity is interpreted in a self-determining fashion in keeping with the overall purpose of human rights law to respect human dignity and human freedom. The child does have an identity right as a matter of human rights law: under the CRC to know as far as possible his or her parentage, and under the ECHR, as more convincingly interpreted in line with human rights law's purpose, to have a right to personal identity meaning self-determining existence. This protection is given through knowledge of, and information concerning, his or her existent life, not on an entitlement to exact knowledge of his or her genetic or biological parentage.Footnote 118 There is no human right to have exact knowledge of the identity of your genetic or biological parents. In this regard, Jane Fortin has provided detailed analysis as to why the right to know one's genetic origins is going “too far, too fast”.Footnote 119
The Court of Appeal's examination of concealed births and adoption appears to confirm this. In Re C, the unmarried 19 year old mother had made it clear she wished the child to be placed for adoption at birth. The question for the Court of Appeal was again whether the local authority was under a duty to make inquiries to find out as much information about the background of the “father” or any of the child's birth family to see if they would be suitable carers for the child. The mother had not told her family of her pregnancy or the birth and considered them to be unsuitable carers for the child. There was no relationship with the father, other than a one night sexual encounter; she refused to identify him, and she had never spent time caring for the child.Footnote 120 The Court of Appeal decided that there was no duty to make inquiries. Importantly for the purposes of interpreting what an identity right may mean in this context, the Court of Appeal made clear that inquiries are not in the interests of the child simply because they will provide more information about the child's background. Instead, they must genuinely further the prospect of finding a long-term carer for the child without delay.Footnote 121 This contrasts clearly with the judge of first instance, Judge Taylor. In his judgment, the ACA 2002 now made the law “quite straightforward”. In his words:
The Local Authority have no choice, they are under a duty to inform themselves of as much information about the background of the extended family as they are able to do. It may well be that somebody suitable is in a position to come forward and offer a home for this child and if so then obviously it will be in the interests of this child to be placed within the family. … (at paragraph 26 of his judgment)
He continued:
When one looks at the likely effect on the child throughout her life one has to concentrate on the child and not the mother's wishes and the reality is – as we all know nowadays – that when children are adopted they come to a time in their life when they do enquire about their parentage and it would be cruel in the extreme to prevent this child having as much knowledge as possible about her background in the event that she is adopted, even if that information comes without the consent of the mother … (at paragraph 27 of his judgment)Footnote 122
In overturning this decision and considering the issues in the mother's favour, Arden L.J.'s decision turns on an interpretation of section 1 of the ACA 2002, considering the interests of the child. Where a child has never lived with his or her birth family, and is too young to understand what is going on, any arguments as to the wider “natural” family are weaker. In a case such as this, such arguments are overtaken by the need to find the child a permanent home as soon as that can be done; a preference is given to avoiding delay with focus on the child's long term care.Footnote 123 Whilst she states that “it is likely these days that, in the absence of some religious objection, a woman would have an abortion rather than take an unwanted child to term”, Arden L.J. continues that if matters of potential harm to the mother's health or the child's health can be supported, they may constitute an additional reason for the court having power to withhold information from relatives or the father of a child in an appropriate case.Footnote 124 The learned judge states that it is self-evident that “it would be inappropriate to reveal the existence of a child to a father who was violent, or to relatives who suffered from illnesses which would make it impossible for them to look after the child”.Footnote 125 It is also made clear that there is no policy or legislative preference for the “natural” family.Footnote 126 Whilst stating that there is an interest in the child retaining his or her identity, and this is likely to be important in adulthood, this is “only one factor in the balance that has to be struck.”Footnote 127 The Court of Appeal was not convinced by the guardian's arguments that there is now an expectation of disclosure and a societal shift in support of greater involvement of the “natural” father.Footnote 128 Preference is given to permanence, avoidance of delay and placement of a child in a stable home.
The way that Article 8's right to respect one's private life has developed into a right to personal identity in the majority of cases at the ECtHR, and as can be interpreted from Re C at the Court of Appeal, shows in legal form that the development of one's personality does not need to entail a belief in an inner human essence, manifesting itself here in geneticism. To reiterate, the idea of identity presented by the dissenters in Odièvre, in Jaggi, in many campaigners for removing donor anonymity, and in some interpretations of children's identity rights in the 21st century, all of which highlight genetics and biology, depend on an idea of identity which relies on an unchanging foundational core of the human person. This may be constraining because it can be used to justify the state coercing people into behaving in a certain way in the name of realising, bringing to fruition and liberating some inner core, with people “finding out” who they “truly” are, and acting “authentically”. It is argued that when the ECtHR interprets Article 8's personal identity right to be more in line with a self-determining version of identity, it presents a more sophisticated version of identity. When personal choices can be made which accept the potential of each individual to form projects and exist in the world in a meaningful way as they see it and or to change their identity, to live the life of their own choosing.Footnote 129 While the right to access information relating to one's childhood existence and development,Footnote 130 is also part of this idea of identity, it is very different to linking identity with one's biological parentage in the sense that it is more “natural” and “authentic”. The danger with presenting a view of the “human core” which is always there and can somehow be reclaimed or discovered and realised consists in fixing and constraining identity, taking us back to ideas of human nature or function and can amount to forcing us to be free. A more fluid idea of identity focusing on lived experience and one's existence, permitting change and space to change or personal choice to remain is one that is seen in many identity rights legally protected through the ECtHR's jurisprudence.
Conclusion
Whilst the English court decisions analysed here are based on considerations of the welfare of the child, as is legally required, they allow a woman to choose not to reveal the identity of the child's biological father and to conceal the child's existence from the wider biological family. They also allow her to make choices which many would find not in keeping with a view of authentic identity freedom. In an era of human rights and the growing importance of issues of personal identity, querying the right of a woman to give over her baby for adoption is a worry that requires consideration of the issues raised in this paper in an effort to interrogate a constraining version of identity and permissible choice from becoming more prominent. In analysing the way the Article 8 right has developed in the majority of cases at the ECtHR, correlations have been found with a concept of human freedom and identity as self-determination, not authenticity.Footnote 131 Limiting economic and social circumstances may contribute to the reasons why a woman gives her baby over for adoption and such injustices need to be fought at the level of changing those circumstances. Rather than, however, viewing the birth giver as a victim of those circumstances, or as someone who is exercising inauthentic choices and thus sabotaging her identity, and that of the child, it seems more convincing to encourage a capacity and freedom to make choices that take both her conditions and her agency seriously and help her forge her own sense of self through respecting her choices. Showing care and respect by listening to, and acting upon, a woman's choice not to disclose information concerning the “father” and her wider family respects her privacy and confidentiality rights including her health, and possibly her life, and that of the child. It is also in keeping with a child's best interests and identity in terms of aiming to assist them in living in security, cared for by those who love and want them, support them, and are capable of looking after them. It is hoped that readers will consider the issues raised here with an open mind, acknowledging the variety of complex issues surrounding such choices, including legally treating people with respect, sensitivity and care, and not treat their actions with paternalistic disdain or disregard.
