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Home > Judgments > 2013 archive

Re X (A Child) [2013] EWHC 689 (Fam)

Application for adoption. Question as to definition of requirement of s42(3) Adoption and Children Act 2002 for child to “have his home” with applicant for 6 months preceding adoption application.

AB made an application to adopt X, who was the child of his fiancée. The applicant and the mother of the child live in once country, X is at boarding school in another country and X's maternal grandparents and family live in a third country; none of these countries being England or Wales. The application was made in this jurisdiction on the basis that the applicant had retained a property and familial ties in the UK and had every intention of returning here and making it his home at some point. This was not challenged and so it was deemed proper that this application was made in this jurisdiction.

The applicant had produced evidence which demonstrated that he was, effectively, taking on the role of a parent: he was the only person who visited X at boarding school, made X's travel arrangements for the holidays and provided for her financially. The gateway issue to be decided under the statute was the requirement under s42(3) that X "must have had [her] home with the applicant...at all times during the period of six months preceding the application."

Theis J accepted that any time at boarding school should be disregarded as time away from the applicant. But, even taking that into account, on the applicant's own evidence, X had spent only approximately one week with the applicant, in any home preceding the application.

Theis J stated:

"Whilst it is correct that the applicant appears to have taken on financial and moral responsibility in providing for X and, according to the applicant, they are in regular contact by telephone, email and text that does not, in my judgment, equate to having a "home with the applicant" even allowing for the most flexible and purposive construction of the provision."

Theis J accepted that it would be in X's best interests to be adopted by the applicant, but the facts of the case were such that the six month requirement was not fulfilled and, therefore, this adoption was not permissible, at this time. Application refused.

Summary by Akta Chipalkatty, barrister, Church Court Chambers
________________________

Neutral Citation Number: [2013] EWHC 689 (Fam)
Case No: FD12Z00510

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 27/03/2013

Before:

MRS JUSTICE THEIS DBE
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Between:

AB Applicant

- and - 

BC 1st Respondent

-and- 

DE 2nd Respondent

-and- 

A Local Authority 3rd Respondents

-and- 

X 4th Respondent
(Through Her Children's Guardian Deborah Day 
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- - - - - - - - - - - - - - - - - - - - -

Ms Kathryn Cronin (instructed by Goodman Ray) for the Applicant
Mr Alex Forbes
(instructed by A Local Authority) for the 3rd Respondent
Ms Abigail Bennett
(instructed by Forshaws Davies Ridgeway) for the 4th Respondent

Hearing dates: 7th March 2013
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Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

This judgment is being handed down in private on 27 March 2013. It consists of 12 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Mrs Justice Theis DBE :
1.   This matter concerns an application by AB (hereafter referred to as the applicant) to adopt X, now 15 years. X's mother, BC, is the applicant's partner (hereafter referred to as the mother). They are engaged and plan to marry. The provisions of section 51 (2) Adoption and Children Act 2002 ('ACA 2002') provide for adoption applications by a person who is the partner of the parent of the person to be adopted. X's mother and father are parties to this application, but are not present or represented. There is written evidence they consent to this application. The other parties are the relevant Local Authority and X, through her Children's Guardian.

2. The applicant's application to adopt X is dated 5 October 2012. Following a preliminary hearing on 28 November 2012 District Judge Simmonds transferred the application to the High Court.

3. The matter came before me on 20 December 2012. I directed this hearing to consider the following preliminary issues:

i. Whether the applicant has an English domicile and thus the standing to apply for  this adoption order. This issue was conceded by the Local Authority prior to this  hearing;

ii. Whether the 'home' identified in s42 (3) ACA 2002 has to be within the area of this Local Authority. This issue was conceded by the Local Authority prior to this hearing;

iii. Whether pursuant to s42 (3) ACA 2002 X has had her home with the applicant at all times during the period of 6 months preceding his application dated 5th October 2012. This issue remains in dispute;

iv. Whether the proposals the applicant put forward in relation to the Local Authority's statutory investigation and assessment  constitute a sufficient opportunity to see X in the home environment as required by s42 (7) ACA 2002. This issue remains in dispute;

v. Whether in the circumstances of this case the applicant and X have a home environment within the area of this Local Authority for the purposes of s42 (7) ACA 2002. This issue remains in dispute.

4.  I have had the benefit of detailed skeleton arguments from Ms Cronin, on behalf of the applicant, Mr Forbes, on behalf of the Local Authority, and Ms Bennett, on behalf of the Children's Guardian. I am grateful to them for the detail and analysis in these helpful documents. Ms Bennett's position in her written skeleton is to support the analysis set out by Ms Cronin, although that position changed during the hearing. I heard oral evidence from the applicant and oral submissions from all counsel.

Background
5.  The applicant was born in England. He worked in England until the late 1970s. Since then he has mainly worked abroad in the Middle and Far East. He has always retained a home in the area of the Local Authority and has spent some time back living in this jurisdiction.  According to his written evidence he jointly owns properties with his former wife. The plan is to sell those properties to provide for their respective retirements. One property, the applicant has owned since 1998. It is this property he proposes he and X are based in for the purposes of the s 42 (7) ACA 2002 assessment. It is currently rented out. The applicant states his intention has always been to return to this jurisdiction when he retires. His mother, siblings and children live in this jurisdiction.

6.  The applicant married Ms Y in 1984. He adopted her two children, by orders made in the County Court. Between 1995 and 1998 they returned to live in this jurisdiction before basing themselves in country A, although they lived 'on and off' back here between 1998 and 2007. These children attended boarding school in country B before attending university here. They both live here and have recently got married.

7.  The applicant met X's mother in country A in 2008. The mother had separated from her husband in 1999; their marriage was annulled in 2010 with the mother being granted sole custody of X. X has not seen her father since 2008, although they have had some contact via facebook. He has since remarried.  Following the separation of her parents X had lived in country C with her mother and then her maternal grandmother. X and her parents are citizens of country C. X was born in country C. The mother relocated to country A in December 2007. The Applicant started living with the mother in 2009 in country A, where they remain based both working full time.

8.  The chronology regarding the development of the relationship between the Applicant and X had to be adjusted somewhat following the oral evidence of the Applicant.

9.   According to his written evidence, the applicant's first meeting with X was at the maternal family home in country C in March/April 2009. She was enrolled to attend boarding school in country B from January 2011, she still attends that school. The applicant bought a house in country B about 10 years ago as a holiday home. He described it in his statement as follows 'Now it is used by our family during X's school holidays and as a place where I can holiday in to unwind and still run my business from'. In his first statement he said 'We always spend all of the school holidays as a family, usually together either in England, or in our property in [country B] or in [country C]..'. In his second statement he said '...X has her school and family life abroad with BC and me. So, with X living with us in countries A and B and attending school thousands of miles away in country B,....'. In his third statement he said 'We are a family with multiple homes and X lives with us in different places – in our country B home, country A and with her maternal family in country C. X has had her home with us jointly since June 2009. At that time she was attending school in country C and we spent our family holidays there and in country B. From January 2011 we have lived with her around her … school terms.' Later in the statement he said 'In the six months leading up 5 October 2012 when I issued my application, in addition to our daily or weekly contact, X physically spent time with us on every long school holiday at our home in … country B in April 2012 and at home in country C in August 2012.'. The clear impression from the Applicant's statements was of regular contact with X, and since January 2011 all spending school holidays together.

10. The oral evidence painted a very different picture. The applicant was surprisingly vague about the detail, bearing in mind this was an important part of his case. According to his oral evidence, following the applicant's first meeting with X in the spring of 2009 at the maternal grandparents home in country C until December 2010/January 2011 they met on three further occasions during relatively short visits to country C lasting one or two weeks (one 3 – 4 months after the first visit in 2009, over Christmas/New Year 2009/2010 and at least one occasion in 2010). The next time the Applicant saw X was around the time she started at the school in country B. The applicant stayed in his home in country B for about a week to settle her in. Thereafter, during each school holiday X either stayed with a teacher in country B or returned to the maternal grandparents in country C, save for possibly Easter 2011 when the Applicant said he stayed with her for a week at his home in country B, followed by possibly a short period in the summer 2011, again in country B.  X went to the country A at Christmas 2011/New Year 2012. This was her first trip there.  In 2012 the only occasion the applicant could specifically remember was a trip in October 2012 with X and her mother. X spent all the 2012 summer holidays in country C and he thought during the 2012 Easter holidays they may have spent some time staying in country B.  The shorter half term holidays were generally spent by X staying with a teacher in country B. He emphasised that the mother had only limited holiday time from her job, which curtailed her opportunities to visit her daughter.  He said X had not come to country A any other times as both he and X's mother work full time, so she would have spent a lot of time on her own. X has not been to the UK. She did not accompany the applicant on his recent trips back to the UK. One occasion was for the wedding of his adopted daughter from his previous marriage. He said it would have been insensitive to have brought her with him. The second time he came back here clashed with her exams.

11. The applicant said in his statements and oral evidence he is in regular communication with X, they speak most Sunday evenings and are in regular email/text contact. He attached to his statement some copies of the email exchanges between them. They are affectionate and familiar in tone. There is a letter from X's school dated 20 February 2012 which confirms that the applicant makes all financial arrangements and all matters regarding X's travel and medical matters are through the applicant. The letter confirms the only family member who visits or picks her up is the applicant.

The legal framework
12. Where, as here, the adoption application under s 51 ACA 2002 is made by one person, he must be either domiciled in the UK or habitually resident for a year prior to making the application. On the facts of this case there is now no issue about that. The applicant has retained his domicile of origin. He has set out in detail in his statements his continuing ties to the UK, the fact he has retained a property here, his intention to retire and live here in about 7 years time and, on his death, to be buried here. That evidence has not been challenged.

Adoption Preliminaries
13. Sections 42 – 45 ACA 2002 are headed 'Preliminaries to Adoption'. S 47 sets out the conditions for making adoption orders.

14. S 42 (3) ACA 2002 provides "If the applicant or one of the applicants is the partner of a parent of the child, the condition is that the child must have had his home with the applicant or, as the case may be, applicants at all times during the period of six months preceding the application". The Court can give leave to abbreviate the placement term for foster parents or children privately placed but not the term the child has with his/her step parent adopter. (s42 (4)- (6)). 

15. Sections 44 (1)-(3) ACA 2002 provide that where an adopter wishes to adopt a child who was not placed with him/her by an adoption agency, the proposed adopter must have given notice to the appropriate local authority of his intention to apply for the adoption order. The notice must be given not more than two years and not less than three months before the adoption application is made to a Court.  This provision has been complied with. The applicant notified the Local Authority of his intention to adopt X on 24 November 2011. He issued his adoption application on 5 October 2012 in the Principal Registry of the Family Division. When acting in person he had previously sought to issue an application in his local County Court, but it was returned by the court without being issued as the Judge who considered it did not consider the court had jurisdiction on the information it had available to it. The applicant was advised to get legal advice.

16. Section 44 (5) ACA 2002 provides that on receipt of a notice of intention to adopt the local authority must arrange for the investigation of the matter and submit to the court a report of the investigation. The local authority's investigation and report is required to consider the suitability of the proposed adopter (ss 44 (6), 45 ACA 2002).

17. Section 42 (7) ACA 2002 provides 'An adoption order may not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant or, in the case of an application by a couple, both of them together in the home environment have been given

(a) where the child was placed for adoption with the applicant or applicants by an adoption agency, to that agency,

(b) in any other case, to the local authority within whose area the home is.'

The arrangements under this sub-section are not agreed with the Local Authority.

18. Section 47 ACA 2002 sets out the conditions for the making of an adoption order. The conditions relevant to this case are it is a condition for making adoption orders that each parent consents to the making of the adoption order (ss 47 (2), 52); and that the child is not/ has not been married or a civil partner ( s 47 (8), (8A)),  was under 18 at the date of application (s 49 (4)) and is not yet 19 (s 47 (9)). On the face of the information available to the court these conditions are met in this case.

The requirement to have a home with the proposed adopter s 42 (3)
19. The Local Authority concedes this does not have to be in the local authority area. They are right to do so.

20. Section 44 (2) ACA 2002 requires the adopter of a privately placed child to give notice of his intention to adopt 'to the appropriate local authority'. The appropriate local authority in a 'prescribed case' is one prescribed by regulations (s 44 (9)). A 'prescribed case' is one prescribed by the Regulations (The Local Authority (Adoption) (Miscellaneous Provisions) Regulations 2005 No 3390). The relevant part of the Regulation provides the local authorities who are prescribed, the relevant part for this case is Regulation 3 (2) 'In the case of the proposed adoption by one person who no longer has his home in England, the prescribed local authority is the local authority for the area in which that person's last home in England was situated'.

21. Section 42 (3) ACA 2002 does not designate the locality of the home prior to the making of the application. The term in s 42 (3) 'has had his home' is not localised, unlike s 42 (7) which identifies the location of the home during assessment. This is supported by the cases decided prior to the ACA 2002 (see In Re Y (Minors) (Adoption: Jurisdiction) [1986] 1 FLR 152 and Re SL (Adoption home in jurisdiction) [2004] EWHC 1283 (Fam)). Neither the Children Act 1975 nor the Adoption Act 1976 had provisions which nominated an appropriate local authority for adopters who no longer had their home in England. This change in the 2002 Act is in part explained by its wider remit, the ACA 2002 now covers both domestic and inter-country adoptions.

22. The much more difficult question in this case concerns the requirement in s 42 (3) that X 'must have had [her] home with the applicant or, as the case may be, applicants at all times during the period of six months preceding the application'. Similar requirements were used in the CA 1975 and AA 1976. Prior to that s 3(1) of the Adoption Act 1958 stated "An adoption order shall not be made in respect of any infant unless he has been continuously in the care and possession of the applicant for at least three consecutive months immediately preceding the date of the order, not counting any time before the date which appears to the court to be the date on which the infant attained the age of six weeks."  This more demanding test was considered in Re B. (An Infant) [1963] 3 W.L.R. 471 in which Buckley LJ determined that the Court had jurisdiction to make an adoption order where the mother, who sought an order to adopt her own illegitimate child, worked night shifts as a nurse and paid a married couple to care for the child while she was at work. Buckley LJ held that; "A widowed mother, compelled to earn a living to maintain her child and herself, might well find herself in just such a situation as the applicant and might, as it seems to me, make just such arrangements as the applicant has made for the care of her child without surrendering any part of her parental control or responsibilities." Buckley LJ noted concerning the application of the provision that: "….the section cannot reasonably be construed in its most strictly literal terms. In this connection it must be borne in mind that the Act is not confined in its operation to the adoption of infants in arms. It is equally applicable to the adoption of a child of school age or a young man or woman of 20. To suppose that the legislature could have intended that no order could be made in any case in which the infant in question had within the past three months attended a school would be foolish, although, while at school, the child would be subject to the discipline of the school and would be more literally in the care of the school authorities than of the prospective adopter. It would be equally unreasonable to suppose that an applicant would be prevented from obtaining an order if he or she had on any occasion in the past three months left the child for a short time in the care of a servant, relation or neighbour or if the infant had paid a short visit to a friend. It would no doubt be unwise to attempt to define what is meant by the words "continuously the care and possession of the applicant" in this section and I shall make no such attempt". 

Courts have subsequently looked to the intention of the provisions and have interpreted the provision so as to have application to the varied family situations (see Munby J (as he then was) Re SL (Adoption home in jurisdiction) ibid). Such pragmatic application, Ms Cronin submits, is apt in this case. Parliament did not intend section 42 (3) to exclude family adoptions where the child was in boarding school. Mr Forbes, on behalf of the Local Authority, does not disagree with that proposition. The relevant extract he referred to from Hansard supported that.

23. Ms Cronin submits the following in relation to the approach this court should take regarding the requirement that the child 'has had [her]home' with the adopter:

(1) This is a more flexible, open requirement than in previous legislation. It is directed to ensure the adopter has begun exercising the functions of a parent, such that a family relationship akin to parent and child has been established.

(2) A teenage child attending a boarding school has her 'home' with her parents (Re Y (Minors) (Adoption: Jurisdiction)[1986] 1 FLR 152).  Sheldon X in Re Y cautioned against defining a 'home' and later statutes have not defined it. She submits the absence of a definition allows consideration of varied family home arrangements.

(3) The phrase 'had his home with...' (emphasis added) puts the focus on the relationship between the adopter and child. This requires an evaluation whether the proposed adopter has begun to assume responsibility for and undertake the care and guidance that are the hallmarks of parental responsibility and of the child's attachment to a home.

(4) The test is not about the days spent physically living together; the court should take a purposive construction of the statutory text.

(5) This requirement needs a more flexible interpretation where the child is a teenager, as compared with an infant requiring close supervision by the prospective parent, and where the family have several homes.

24. In her skeleton argument Ms Cronin submits 'It is AB's case that X has her home with him and her mother notwithstanding her school boarding. They have very frequent contact with her; exercise parental control over her and are alert to and actively supervising her activities. X's international lifestyle may result in her residing in different homes in different countries but the centre of her existence – the 'home' in the relevant period was the place where AB and her mother were – as their base provides her stability, care and guidance.'.

25. Mr Forbes, on behalf of the Local Authority, submits:

(1)  That the word 'home' in s 42 (3) is incapable of precise definition but includes an element of regular occupation with some degree of permanency. He relies on the observations of Sheldon X in Re Y (ibid) at p 140 "The further question remains, therefore, of what is to be regarded as a "home" for these purposes. It is a question to which little or no assistance in finding an answer is provided by sections 107 (1) and 87 (3) of the Children Act 1975. Nor, in my view, unless it is to be given, for any particular purpose, some arbitrary statutory meaning, is the concept capable of precise definition. Nor, too, in my opinion, should such a definition be attempted beyond indicating the principal features that a "home" may be expected to embody. Subject to that, in my judgment, it must be a question of fact in any particular case whether or not the applicant has a "home" here within the meaning of the Children Act 1975.

"Home" is defined thus in the Shorter Oxford English Dictionary:

"A dwelling-place, house, abode: the fixed residence of a family or household; one's own house; the dwelling in which one habitually lives, or which one regards as one's proper abode."

It is a definition which, in my judgment contains the essential elements of a "home" as it is to be understood for present purposes. I have no doubt that any individual may have two homes; but each, in my judgment, to be properly so called, must comprise some element of regular occupation (whether past, present, or intended for the future, even if intermittent), with some degree of permanency, based upon some right of occupation whenever it is required...'

(2) The purpose of section 42 (3) is to ensure that the child has spent sufficient time living with the applicant in a home environment to enable the court to be satisfied that they are sufficiently well matched for the adoption to be likely to be successful and the word "home" should be considered in that context. He relies on the observations of Moore-Bick LJ in Re A (A Child) EWCA Civ 41 when considering the purpose of s 42 ACA 2002. He said at paragraph 106 "Section 42 of the Act poses other difficulties, however. The section as a whole is directed to domestic adoptions and is concerned to ensure that the child has spent sufficient time living with the applicant in a home environment to enable the court to be satisfied that they are sufficiently well matched for the adoption to be likely to be successful."

(3) The question of whether a child has had his home with the applicant or, as the case may be, applicants at all times during the period of six months preceding the application is one of fact. In this case, he submits, the evidence does not establish that requirement. He relies on the different picture that emerged in the oral evidence, compared to that in the statements. The reality is the applicant and X have spent very little physical time together, either in country C or country B since 2009. At most there have been three or four relatively short periods in country C and the same at the property in country B, with one trip to country A (contrary to what is set out in the applicant's statement). She has not been to this jurisdiction with the applicant. The evidence in relation to the six months preceding the application in October 2012 is that they did not spend any physical time with each other, save for possibly a short stay in the property in country B in April 2012. The applicant's oral evidence was clear in relation to the summer holidays in 2012; X spent her whole time in country C with the maternal family.

(4) He refutes the submission by Ms Cronin that the requirement 'have her home' is directed to ensure the adopter has begun exercising the functions of a parent, and the focus should be on the relationship between the adopter and child. He submits that would amount to an 'impermissibly liberal' interpretation of the requirement in s 42 (3). Whilst he acknowledges this provision should be construed flexibly and broadly it does not follow that it should be stretched so as to become meaningless. He submits the purpose of s 42 is to ensure that the child has spent sufficient time living with the applicant in a home environment to enable the court to be satisfied that they are sufficiently well matched for the adoption to be likely to be successful. The home in this context consists of a physical environment, not just a psychological relationship. Parental control and involvement from afar, even in the context of a warm and loving relationship, does not meet the relevant criteria. Occasional stays together do not, in his submission, meet the relevant requirement.

26. Ms Bennett for the Children's Guardian supported the applicant's analysis on the papers. However, following the oral evidence, her position shifted to being much more cautious: submitting, in effect, that the facts of this case were at the 'outer limits' of the spectrum of what would be considered sufficient to meet the requirements of s 42 (3).

The Adoption Assessment
27. S 44 (5) ACA 2002 requires the local authority, on receipt of the notice of intention to adopt, to arrange for the investigation of the matter and submit to the court a report of the investigation. S 42 (7) provides 'An adoption order may not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant...both of them together in the home environment have been given...to the local authority within whose area the home is.'

28. Ms Cronin submits it is well settled (see In Re Y and Re SL ibid) that this provision simply requires the adoptive applicant and child spend sufficient time in the UK to enable the local authority properly to investigate their family circumstances. In each of these cases the Court approved a sensible purposive reading to the legislation.

29. She submits a similar approach should be adopted in relation to the term 'home' in s 42 (7). The applicant has indicated that they will occupy the property in the area of the Local Authority. In her written skeleton argument she said it is intended that X will spend her term holidays here and if the Local Authority wishes to observe the home in country A the applicant has offered to fund the costs of that visit for that purpose. She submits this is different to the In Re Y case as there the parties did not reside here as a family and the children returned to Hong Kong to their parents' home each vacation.

30. Mr Forbes, on behalf of the Local Authority, submits that the applicant and X do not have a home environment within the area of the Local Authority for the purposes of s 42 (7) (b). In his third statement the applicant proposes spending 4 weeks during the summer holidays in 2013 with X at his property in the area of the Local Authority.  These proposals were adjusted in his oral evidence to effectively be the summer holidays in 2013 and then the major holidays thereafter (Christmas, April and Summer 2014). Due to the fact X's mother had very recently changed her job she was going to be unlikely to be able to spend more than a week in this jurisdiction with them until after April 2014. The applicant, in his oral evidence, was not even certain about that. The Local Authority does not consider this will give them sufficient opportunity for them to see X and the applicant in the home environment. The written evidence from the social worker, who has responsibility for this case, indicates that the time proposed of 3 – 4 weeks in the summer is not sufficient to undertake the assessment. He said such assessments generally take 6 weeks and time can be extended in more complex matters. He set out at paragraph 2.2 the enquiries he would expect to undertake, including meeting the mother.

The effect of the adoption order
31. The applicant's case, Ms Cronin submits, is that the adoption order will bring life-long benefits to X. It will provide her with an involved supportive father, where such figure has been lacking in her life. Her birth parents separation and subsequent divorce and her mother's emigration in order to provide financially for the family can cause disruption and insecurity. An adoption order would help ameliorate those concerns.  The conferral of citizenship would be a further benefit, enabling her to live in this jurisdiction with her parents on their retirement.

32. Ms Cronin submits that, in considering these gateway requirements the court's paramount consideration must be X's welfare throughout her life in accordance with s 1 ACA 2002 and the considerations in s 1 (4). Neither Mr Forbes, nor Ms Bennett, has taken issue with that proposition.

Decision
33. In my judgment the applicant, on the particular facts of this case, does not meet the gateway requirement of section 42(3) that require him to establish, on the balance of probabilities, that 'the child must have had his home with the applicant...at all times during the period of six months preceding the application'. I have reached that conclusion for the following reasons:

(1) It is accepted that any period in boarding school should be disregarded. The evidence, in my judgment, establishes (contrary to the position set out in the applicant's statements that each long school holiday since January 2011 had been spent with the applicant) that prior to October 2012 the applicant has spent only very limited physical time with X.  Even adopting a wide lens, as Ms Cronin invited me to do, at most it has consisted a three or four relatively short periods spent in country C (two in 2009 and Christmas 2009/2010 and one occasion in 2010), four relatively short periods spent in the applicant's home in country B  (the first in January 2011 was to be on hand for a week or so when J started school, followed by a week or so Easter and Summer 2011 and possibly Easter 2012), one period in country A (Christmas 2011). In the context of the six month period prior to October 2012 it consists, at most, of possibly a week or so in country B, but the applicant's oral evidence on this was somewhat vague. He thought he 'may' have spent some of the Easter holidays in 2012 with X in country B. So the factual position is that in the six months prior to this application X had, at most, spent only a week or so with the applicant in any home.

(2) Whilst it is correct that the applicant appears to have taken on financial and moral responsibility in providing for X and, according to the applicant, they are in regular contact by telephone, email and text that does not, in my judgment, equate to having a 'home with the applicant' even allowing for the most flexible and purposive construction of the provision. Making all due allowances for the international nature of this family the purpose of s 42 ACA 2002 is to ensure the child has spent sufficient time living with the applicant in a home environment to enable the court to be satisfied that they are sufficiently well matched for the adoption to be likely to be successful. It is difficult to see how that gateway requirement has been met on the facts of this case.

(3)  Ms Cronin invites the court to look at the widest picture of the facts. I take that to mean not limiting the analysis to the six months, but to look at the modus operandi of the family outside that time period to inform the picture within the six month time frame. That, in my judgment, does not assist as the picture on the evidence is of intermittent times being spent together in different locations, the longest being no more than two weeks. It was revealing when asked where he thought X would think her home is, the applicant replied country B, more specifically her boarding school.

(4) A powerful force in considering my decision has been the welfare considerations, which are not in dispute, and drive the court in the other direction from the conclusion I have reached. Rather like Sheldon J In Re Y I have conflicting emotions. I have no reason to doubt that it would be in the best interests of X to be adopted by the applicant. But however powerful those considerations are they cannot, in my judgment, change the hard, stubborn facts of the case, even giving the provisions their most purposive construction. None of these relatively short stays, taken individually or cumulatively could accurately describe X as having had her home with the applicant in the six months prior to the application.

(5) Although not canvassed in argument I fully recognise that there is nothing stopping the applicant issuing another application in the future, when the factual foundation may be different. That, however, does not justify the court now stretching the gateway requirement to the limit on the facts as they stand now. To allow this application to proceed on this factual foundation effectively renders this gateway requirement to be meaningless and would, in my judgment, be driven by welfare considerations.  As Munby J (as he then was) observed in Re SL [2005] 1 FLR 118 at paragraph 23 'As Re Y...shows there will be occasions when the plain words of the statute prevent a judge doing that which is in the best interests of the child. So be it. But that is no reason for construing the Adoption Act 1976 narrowly , or reading into it words that are not there, if the consequence is to be the denial to a child of an adoption which is plainly in his best interests. This is legislation which requires to be given a sensible and purposive construction.'

(6) I have carefully considered the submission of Ms Cronin to the effect that the focus should be on the relationship between the adopter and the child. She relies on the language of the sub-section 'have had [her] home with ...'. She submits the test is not about physical days, the court needs to step back and evaluate the relationship. I disagree, that is not what the provision says. That was not what was intended; otherwise it would have expressly said so. An adoption order fundamentally changes status and the gateway requirement should be construed with that consideration in mind.

(7) Ms Cronin accepts the facts of this case are at the 'outer limits' of this gateway requirement. In my judgment however purposive the construction is of the relevant provisions the facts of this case are beyond those outer limits.

34. In the light of my conclusion regarding the gateway requirement in s 42 (3) it is not necessary for me to consider whether there were sufficient opportunities to see the child and the applicant under s 42 (7) and whether the home in the area of the Local Authority meets the 'home' requirement in s 42 (7). I can indicate, however, if I had found the gateway requirement in s 42 (3) was met I would have required, in the light of the statement from the social worker, more detailed proposals about the time when the applicant could be here with X and when her mother could join them. This is particularly in the context where they had spent so little time together and had never been together in the home in this jurisdiction.