In the recently decided Court of Appeal case of M v F and H and BA a mother had sought a number of declarations aimed to deny her husband all knowledge of the birth of his legitimate child. The application had been refused at first instance. The Court of Appeal upheld that decision.

The mother and father were both of Sikh origin and lived in Afghanistan. In 1998, the family moved to this country and were granted asylum following torture of other family members by the Taliban. The father suffered from severe depression with psychotic symptoms and post traumatic stress disorder, although there was no suggestion that he lacked mental capacity. The mother's evidence was that the father exhibited unpredictable and frightening behaviour including threatening harm to himself and actual physical violence to the mother.

In autumn 2009, the mother fell pregnant, aged 41. She told her two daughters about the pregnancy but did not inform the father or the son. She decided to give the baby up for adoption but asked that the father not be informed about the baby. The baby was born on 23 July 2010 and the father, being married to the mother, was automatically vested with parental responsibility. The baby was instantly made a ward of court and was then placed in foster care. The mother has declined to register the birth or select a name for the baby. She did not wish to break up the marriage.

Evidence from a consultant psychiatrist said that it was possible that if the father was told, "there may be a subsequent deterioration in his mental health" but could not say what his likely reaction would be. The mother stated that the father was not able to care for himself, he had hit her and she feared he would mistreat the child.

Sections 47(2)(a) and 52(6) of the Adoption and Children Act 2002 provides that the consent of the father as a parent with parental responsibility is required in order for an adoption order to be made, although this can be dispensed with if the welfare of the child requires it.

The judge at first instance said that the parties are married and living together and a full family life existed. The mother asserts that her husband is the father of the child and the presumption of legitimacy applies. On these facts, Article 8 (right to family life) and Article 6 (right to a fair trial) applied "very strongly indeed". He said that a very high degree of exceptionality is required. Therefore, nothing less than a significant physical risk, to the mother, the children or anyone else concerned in the case, must clearly be demonstrated. He decided that the evidence before him came nowhere near satisfying the applicable test.

On appeal, the mother argued that although the exclusion of the father could only be justified by a very high degree of exceptionality, the judge was wrong to state that that could only be achieved by the demonstration of significant physical risk. The appeal was dismissed by the Court of Appeal. It decided that, in discussing significant physical risk, the judge was simply emphasising that where the parents had an established family life, preventing one parent from knowing of the child's existence would almost never be justified. When evaluating the risk of future harm, there could be no minimum requirement. The nature and extent of the harm had to be identified and the greater the harm, the smaller the risk needed to be. The evidence of risk in the instant case amounted to pure supposition and was insufficient. The mother's appeal was hopeless and had to be dismissed.