An interesting aspect is the Court of Appeal’s hint, here, that there might be even within care proceedings a lesser test for adoption by a family member than adoption by a stranger (thus raising an entirely new category of adoption for which 'nothing else will do' might not be the test):
'in a child protection case where it is clear that rehabilitation to the parents is not compatible with their child's welfare, the court may be faced with a choice between adoption by total strangers selected by the local authority acting as an adoption agency or adoption by other family members. There is a qualitative difference between these two options in terms of the degree to which the outcome will interfere with the ECHR, Art 8 rights to family life of the child and his parents; adoption by strangers being at the extreme end of the spectrum of interference and adoption by a family member being at a less extreme point on the scale. The former option is only justified when 'nothing else will do', whereas the latter option, which involves a lower degree of interference, may be more readily justified. (para  emphasis added)'
For relinquished babies, the issue is often that the consent to adoption only comes from the mother and the father is either not identified or the mother has asked for him not to be told. Is it then a consensual adoption (in that everyone who holds PR consents) or a non-consensual adoption (in that one of the parents has not been asked to consent)?
The High Court touch on this issue in Coventry City Council and A  EWHC 2033 (Fam)
This was a case where the mother was Romanian, but living in the UK. She had a baby and during the course of the pregnancy and after the birth was adamant about two things – (i) that she wanted to give her baby up for adoption; and (ii) that she did not want the father or her family to be told of the baby.
One can see that if the court is to treat this as a Re B
test 'nothing else will do' than an exploration of the birth family even if just to rule them out is necessary and compliance with mother’s wishes is difficult. That in turn raises public policy issues – if a mother wants to give up a child for adoption but doesn't want her family to know about the baby then there’s a public policy interest that there’s a mechanism that allows her to do this through official methods rather than the old-fashioned leaving the child in a wicker basket outside a police station approach that might be an unpleasant consequence of NOT having that official mechanism.
The judge in Coventry City Council and A
had in mind the Re B
test that 'nothing else will do'.
Sadly, that’s not a final determination that 'nothing else will do' definitively applies to adoption applications involving relinquished babies, because the mother in this case had never signed the paperwork that would have formally relinquished the baby for adoption, and disappeared. That left the local authority in the unenviable position of having to issue care proceedings, and the Court in the position where there was certain strong evidence about the mother’s intentions and wishes but falling short of the evidence needed for consent (which is that she sign a specified form in the presence of a Cafcass officer).
The Court had, therefore, to approach this as a Re B
style case, because it was in care proceedings. The case is also worth reading because it illustrates that in the absence of mother being there to argue against her family being informed and assessed, the Court might well take that course of action, as they did here.
The full argument about whether 'nothing else will do' applies in a genuine adoption application where mother has signed a consent to adoption in the correct process but wider family are unaware, will have to wait for another case, but this is a decent indicator that the courts may well incorporate Re B
into relinquished adoptions.
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