 Hello my name is Brian Sloan and I'm a fellow in law at Robinson College, Cambridge and a member of Cambridge Family Law Centre. I want to talk about the involvement of fathers in adoption proceedings. Adoption has profound consequences for the child concerned since it will often produce a severance of the legal relationship between parent and child and the creation of a new legal relationship between the child and a new set of parents. A significant debate within adoption law and policy surrounds the involvement of biological fathers in adoption proceedings, particularly where the relevant child's mother resists such involvement, perhaps where the child was conceived following a fleeting sexual encounter. I'm going to take you through some of the normative scholarly debates on the issue before exploring the approach taken in England and Wales. I should say the outset that I'm leaving aside situations involving assisted reproduction, whereby a person who did not provide this firm can become the legal parent. Still Marshall has forcefully argued in favour of anonymous birth and adoption for children without involvement of their fathers as a choice that can be validly exercised by mothers or birth givers as she would prefer to call them. Marshall notably did so in an article published in the Child and Family Law Quarterly in 2018. In some jurisdictions anonymous or secret birth is possible, such that no link is even recorded between the child and the mother, let alone between the child and the biological father. Sometimes that's facilitated through the use of baby boxes. As my colleague Claire Fenton-Glinn describes them, baby boxes allow parents to leave children in the care of the state anonymously. They commonly take the form of an incubated crib in a hospital or child welfare centre. When a child is placed by the mother in the crib, a bell is rung and the mother can leave anonymously before a carer comes to take the child. After a waiting period ranging from two to eight weeks, depending on the jurisdiction, the child is then placed for adoption. In contrast to the views of Marshall, scholars such as Fenton-Glinn and myself have expressed concern about the implications of such practices, both for the child's sense of identity and knowledge of origins and for the father's interest in knowing about the child's very existence, let alone being involved in her upbringing. Much of the normative debate in this area has centred around the appropriate interpretation of various international human rights norms, notably those in the UN Convention on the Rights of the Child or CRC. Relevant CRC obligations include protecting a child's right as far as possible to know and be cared for by their parents in Article 7, respecting a child's right to their identity and family relations in Article 8. As regards adoption specifically, Article 21 requires states that recognize the concept of adoption to ensure that the best interest of the child shall be the paramount consideration, but also requires that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians, and refers to the informed consent to the adoption of relevant persons. In a paper in The International Journal of Children's Rights, I've argued in favor of the relevance of Article 5 of the CRC, which requires states to respect the responsibilities, rights and duties of parents to provide in a manner consistent with the evolving capacity of the child, appropriate direction and guidance in the exercise by the child of the other rights recognized in the CRC. A significant issue with human rights norms is that different provisions can conflict with each other. In fact, even different aspects of the same right can produce a conflict. In such situations, the key question becomes how the conflict should be resolved. For Marshall, any conflict between legal norms relating to the core scenario in this video should apparently always be resolved in favor of the mother's wishes, leading to a situation where a father and child may not even be aware of, let alone meet or live with each other. Much of Marshall's view is colored by the fact that there's no explicit reference in the provisions I've mentioned to the biological family, and although the family in which the child is raised will commonly be the genetic or biological family, this will not always be so, including in secret birth situations. On Marshall's analysis, Articles 7 and 8 were drafted to deal with situations of forced removals, quite unlike voluntary secret births, and so to which different considerations should apply. She expresses concern that the idea of identity presented by some interpretations of children's identity rights, which highlight genetics and biology, depends on an idea of identity based on an unchanging foundational core of the human person, which equates a right to identity with knowledge of genetic or biological origins. For Marshall this has the potential for oppression in that it can be used to justify the state, making people feel that they have to bring to fruition and liberate some inner core to find out who they truly are. She fears the perpetuating genetic and biological views of what constitutes a child's identity, right, pits the child against a woman who wishes not to reveal her own identity and or the identity of the father, and risks making the adopted child who might otherwise have been content feel that they're living an inauthentic life and that their right to identity is being contravened and damaged in some way. This could also be used, in her view, not only to argue for revelation of this information, but to make the woman feel her decision to relinquish a child is inauthentic and impermissible. In Marshall's view, however, identity rights pursuant to the CRC can be interpreted differently to the focus on genetic origins. In that rather than focusing on the past, on needing to know everything about other people's lives, including those of one's father and birth giver in an unfairly gendered world, and reducing our identity to blood or genes, it's possible to explore different ways in which we can gain a strong sense of our identity through lived existence and belonging from birth. Marshall advocates a more fluid idea of identity, focusing on self-determination through lived experience. In her view, any human right to identity must be related to care and encourage an environment of belonging and inclusion for any newborn and birth giver, which has potential to be a more empowering, positive and kinder way to proceed in this context of secrecy and pregnancy and birth and to help lead to a more gender-equal world. Further, the law could and should instead enable everyone to be safe, well and enabled to have a private life through the provision of care and support, encouraging a sense of belonging for both birth giver and child policy quickly. Marshall considers it worth reflecting as to why sympathetic attitudes towards anonymity for mothers pursue sparse in times of peace and beyond the caves of rape. In her view, family love and connection from birth are ongoing activities and experiences throughout our lives, forming part of the creation of our identity as a project within relationship. And safe relinquishment can safeguard children from infanticide and abuse, abortion and abandonment on the street. Although Fenton Glenn has queried any link between such occurrences and the presence or absence of baby boxes, for example. Marshall expresses concern about a shift in judicial attitudes towards openness about genetic origins, that risks being exploited and manipulated. For example, by biological fathers claiming that they should have a relationship with the child, despite the opposition of the mother. It might surely be questioned, however, whether there's really manipulation when having a relationship with her father would be consistent with the child's welfare and rights. Or whether there isn't equally a risk of manipulation, where a mother successfully convinces a judge that it would be undesirable for a child to have a relationship with the father. Potentially because the mother simply wants nothing further to do with him. There's clearly much of Meredith Marshall's arguments. There's certainly a case for suggesting that identity rights for the purposes of Article 8 would be overly narrowly interpreted if they were said to relate solely to biological or genetic origin. But there's surely a significant risk of social engineering if the state uses lived experience or lived existence to justify the de-emphasis of biological origin as aspect of identity. Particularly since the child will not have had much in the way of lived experience at the time of relinquishment, and their experience may have been shaped at the behest of the mother. As for Article 7, Andrew Baynham forcefully argued that because of the history and context of the CRC, parents in the convention was intended to mean genetic parents, and the onus is very firmly on those who would argue for an unconventional interpretation. Marshall's approach is also inconsistent with the analysis of the UN Committee on the Rights of the Child. Even if it's possible to argue that too much emphasis has been placed on biology, if genetic or biological aspects are still part of a child's identity to some extent, there should surely be some scrutiny as to the reasons why secrecy is necessary on the particular facts. It should be borne in mind that the child did not choose to be born at all, or indeed to be relinquished and brought up outside the biological family. The mother, by contrast, except in the very difficult case of rape, did choose to engage in an activity, namely sexual intercourse, that could, even if this wasn't intended, produce a child. It's not immediately clear that the mother's interest in keeping that choice secret should automatically prevail over the child's interest when she desires it, even if, on particular facts, Marshall is correct to say that those interests of mother and child might coincide. There's surely a distinction between saying that a mother must raise a child and isn't permitted to relinquish them, and saying that the mother could simply decide that there should be no link whatsoever between her and or the father and the child. There's also a paradox in Marshall's argument. She quite reasonably denies the obligation of the person who's given birth to be a mother, but at the same time advocates the right of that person to determine exclusively whether the resulting child should have any relationship at all with the biological family. My own view, then, is that the biological father should be presumptively entitled, at least for the benefit of the child, to know that his child exists and have some level of involvement in the adoption proceedings. Where it's proposed that this should not occur, it should be by virtue of a clear judicial finding that, exceptionally, it would be contrary to the best interest of the child for the father to be informed or involved, and the father should not be excluded based on the mere whim or preference of the mother. For Marshall's argument prioritizing the choice of mothers to be considered valid, such that there's no real scrutiny of what constitutes a child's best interest, on particular facts, I would suggest that a route would have to be found outside the corners of the CRC, given its emphasis on child welfare. So what is the approach of English law on this question, in a context where the CRC has been ratified and is becoming more influential, but isn't enforceable by individuals in the same way as the European Convention on Human Rights? Fundamentally, there's no right to an anonymous birth in England and Wales. Unlike the situation in France and several other jurisdictions, the person who gives birth to a child in England and Wales is obliged to register the birth within 42 days. If she's married to the father, that obligation is shared with her husband, but if not, the mother has it alone and isn't currently obliged to provide any information about the father on registration. Despite the obligation to register and be registered in the first instance, the mother will nevertheless be able to consent to the placement of the child for adoption and to give advanced consent to the adoption itself by virtue of her automatic parental responsibility. All be it that the process cannot be completed without a court order made when treating the child's welfare as the paramount consideration. The question becomes whether a local authority or a court should involve the father in the process, even though he may well lack formal parental responsibility for the child in the circumstances we're talking about. The leading case on involvement of fathers in adoption is now Re, A, B and C, adoption, notification of fathers and relatives, decided by the Court of Appeal in 2020. In Re, A, B and C, the Court of Appeal considered three separate appeals on the issue and conducted a comprehensive review of the law. Somewhat controversially, and not necessarily consistently with Article 21 of the CRC, it held that child welfare isn't paramount on the question whether a father or other relatives should be notified about a child's existence or proceedings that ultimately could lead to the child's adoption. The correct approach was to balance the interests of the various parties involved in a fact-sensitive manner. In expounding the balancing approach, the Court of Appeal noted that where a mother desires confidentiality, her right to respect for private life under Article 8 of the European Convention on Human Rights is engaged and can be infringed only where necessary to protect the rights of others. That said, the profound importance of adoption is clearly capable of overriding the mother's request, depending on the circumstances. The Court noted the pitfalls of the often limited and one-sided nature of the information available, emphasizing that the confidential relinquishment of a child for adoption is an unusual event and the reasons for it must be respectfully scrutinized so that the interests of others are protected. In achieving a fair balance on a fact, relevant factors would include parental responsibility, whose possession by the father would cause compelling reasons to be required before confidentiality could be justified, Article 8 ECHR writes, the substance of the relationships between the protagonist, the likelihood of a family placement, the impact on the mother and others of notification, cultural and religious factors, the availability and durability of the confidential information and the impact of delay. Ultimately, maintenance of confidentiality is exceptional. In each of the three cases before it, the Court of Appeal refused to sanction confidentiality. In the A case, the mother and father were students who previously had a four and a half year relationship. Among other things, the judge had attached undue weight to the alleged impact of disclosure on the mother and her view that the father was unlikely to have anything to offer, failing to achieve an appropriate balance. His decision was overturned. In B, paternity was uncertain and the mother had been abused. But a family placement was possible, the judge had appropriately balanced the factors and the local authority should continue its inquiries. In the C case, the parents were married with other children, but the mother alleged that the child concerned had been conceived as a result of rape and she was worried about the reaction of the father if he found out about the child. Despite the circumstances, confidentiality would be an extremely strong course to take in light of the father's parental responsibility, automatically conferred by marriage. The parental responsibility meant that the father's consent was prima facie required to any adoption, albeit that it could still be dispensed with where the child's welfare required it. Disclosure was held to be appropriate on the facts. The framework set out in R, A, B and C clearly runs contrary to Marshall's preference and it is closer to my own. It remains the case, however, that on particular facts, a mother could still be given an effective and controversial veto. Of course, one of the most fundamental features of academic life is that scholars are free to come to different conclusions about important policy issues. It may be that you agree with Marshall and as I said earlier, I do appreciate that hers is an important perspective, even if I disagree with some of what she said. I hope that this video has given you a flavour of the debate and will encourage you to explore it further.