Adoption—Foreign adoption—Requirements of foreign adoption procedure

Court of Appeal, Civil Division
Sir Mark Potter P, Wall and Lloyd LJJ
21 February 2008

For the purposes of s 84(4) of the Adoption and Children Act 2002 (ACA 2002), the physical presence of each applicant throughout the relevant 10-week period is not necessary to satisfy the proposition that the child’s home was with both applicants during the period; the issue is one of fact and degree. Moreover, confirmation which has to be given in order to satisfy para 10(b)(iv) of the Adoptions with a Foreign Element Regulations 2005 (SI 2005/392) (the regulations) is to be given by the foreign equivalent of the English adoption agency, not by a governmental body, and does not need to be in absolute terms.

Eleanor Platt QC and Gina Small for the mother.
The first applicant appeared in person.
The second applicant did not appear and was not represented.Richard Beddoe for the local authority.
Rawdon Crozier for the father.
Helen Matuk for the child’s guardians.

The appellant was the mother of a female child born in July 2006. Both parents, who were not living together, accepted that neither was in a position to care for the child, and that it was in her best interests to be adopted. The father’s sister and her American husband applied to adopt the child and move her to their home in Illinois. The father supported their application, but the mother wished for the child to be adopted within the UK.

In order to lawfully remove the child from England and Wales to Illinois, the applicants had to obtain an order under ACA 2002, s 84(1). By s 85(1), a child in the position of this case could not be removed from the UK unless the applicants had parental responsibility for her under
s 84. Section 84(4) provided that an application for an order under the section could not be made unless “at all times during the preceding ten weeks the child’s home was with the applicant or, in the case of an application by two people, both of them”. The judge held that that requirement was satisfied even though one of the applicants, the husband, had returned to the US on business at various points during the relevant period. Paragraph 10(b)(iv) of the regulations provided that, in order for s 84(3) to be satisfied, the relevant foreign authority had to have confirmed in writing to the relevant adoption agency that the child was or would be authorised to enter and reside permanently in that foreign country.
It was accepted that para 10(b)(iv) had not been satisfied. Moreover, the US embassy had stated that it would not issue a visa for the child unless and until the applicants could produce an order under s 84 of ACA 2002 demonstrating that they had parental responsibility.

The judge held that giving effect to para 10(b)(iv) would therefore place the applicants in an impossible situation, since they could
obtain neither a s 84 order nor permission from the US authorities without the other being obtained first. Invoking s 3 of the Human Rights Act 1998, he declined to impose the requirement of para 10(b)(iv). He went on to make the order sought by the applicants and the mother
appealed.

SIR MARK POTTER P (giving the judgment of the court):

The judge had correctly given s 84(4) a sensible and purposive construction; and one, moreover, which was clearly open to him on the facts of the case. He had been correct to identify the purpose of the provision as being not just to ensure that a relationship should begin to be established between the adopters and the child over a continuous period in a domestic context, but also to enable the domestic authorities (in this case, the local English adoption agency) to assess the applicants, and the relationship each enjoyed with the child. That they had plainly been able to do.

The issue was one of fact and degree. The physical presence of one of the applicants throughout the 10-week period was not necessary to satisfy the proposition that the child’s home was with both applicants throughout that period.

Had one not been present at all during the period, or only for a day or two, the situation would no doubt have been different. In that event it was unlikely that the local adoption agency would have had an adequate opportunity to make a proper assessment of him as a prospective adopter of the child. But the applicant’s presence in this case had been plainly sufficient to enable a satisfactory assessment to be made.
The appeal in that respect would be
allowed.
 

Confirmation

His lordship turned to the argument under the  regulations. He rejected the judge’s approach below. The correct reading of the regulations was, first, that the confirmation which had to be given in order to satisfy reg 10(b)(iv) was to be given by the foreign equivalent of the English adoption agency, not by a governmental body, and second, that it need not be in absolute, unconditional or unqualified terms.

It required confirmation from the foreign body equivalent to an English adoption agency to the effect that, provided that all relevant procedures in the UK, and any adoption-related procedures under the law of the foreign state which were prerequisites to the child being allowed into that state were followed, then, from its knowledge and experience, the child would be authorised to enter the foreign state.

In this case the “relevant foreign authority” for those purposes was an adoption agency in
Illinois.

The appeal would be adjourned for a period of 28 days, with liberty to any party to restore it before that period had elapsed. The local authority and the guardian would be invited to make a further approach to the Illinois adoption agency, as the relevant foreign authority, to enquire if that organisation was able to provide the level of confirmation necessary to satisfy para 10(b)(iv).