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Home > Judgments > 2008 archive

G (A Child) Number 2 [2008] EWCA Civ 105_2

Judgment in adjourned appeal hearing concerning the adoption of a child by a couple living in the US. Appeal by mother opposing the adoption dismissed.

This judgment is to be read in conjunction with G (A Child) [2008] EWCA Civ 105. In that judgment the appeal had been adjourned to adduce further evidence on the issue of whether the US adoption agency could provide sufficient confirmation that the prospective adopters could enter the US with the child so satisfying the requirements of Regulation 10 of The Adoptions with a Foreign Element Regulations 2005. Although the statement was not exactly what the Court had envisaged, it was read as the confirmation required and so the remaining element of the mother's appeal was dismissed.

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Neutral Citation Number: [2008] EWCA Civ 105_2
Case No: B4/2008/0277
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM His Honour Judge Vincent
sitting as a judge of the High Court
1 February 2008
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/03/2008
Before :

THE PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE WALL
and
LORD JUSTICE LLOYD
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G (A Child) Number 2

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MM (Appellant)
Mr and Mrs C(1st Respondent)
A Local Authority (2nd Respondent)
AG (3rd Respondent)
G by her Children's Guardian (4th Respondent)

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Miss Eleanor Platt QC and Miss Gina Small (instructed by Messrs Coodes – Solicitor) for the Appellant
Mrs C appeared in person – Mr C did not attend – 1st Respondent
Mr Richard Beddoe (instructed by A County Council) for the 2nd Respondent
Mr Rawdon Crozier (instructed by John Murray – Solicitors) for the 3rd Respondent
Miss Helen Matuk (instructed by Ashtons – Solicitors) for the Guardian – 4th Respondent
Hearing date: 14th February 2008
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Judgment

Sir Mark Potter P :
1. This judgment is to be read in conjunction with, and as the sequel to, the judgment in this case which we handed down on 21 February 2008 – see [2008] EWCA Civ 105. It is also a judgment of the court.

2. It will be recalled that on 21 February 2008, we adjourned the appeal for a period of 28 days. We invited the local authority and the guardian to make a further approach to the American Adoption Agency, as the relevant foreign authority, to enquire if that organisation was able to provide the level of confirmation which we thought necessary to satisfy paragraph 10(b)(iv) of the Adoptions with a Foreign Element Regulations 2005 (the Regulations). We were also concerned with other aspects of the Regulations, and invited the respondents to the appeal to ensure that any other breaches of paragraph 10 of the Regulations had been – or would be – rectified.

3. We have now seen a number of documents, including a letter dated 26 February 2008, from the American Adoption Agency in response to an Email from the child's guardian sent on 20 February 2008. The letter confirms that Regulation 10(b) (i) to (iii) (which we set out in paragraph 14 of our previous judgment) has been complied with. In relation to Regulation 10(b)(iv), the letter reads as follows:-

On an annual basis, my office processes approximately 300 cases for children who immigrate to the United States who must be accepted in Illinois. Pursuant to the US Immigration and Nationality Act, section 320, a foreign born child is eligible to emigrate from their country of origin and remain permanently in the United States once they have been qualified. If the US Citizenship and Immigration Service and the American Consul concur that a minor is eligible for immigration for the purposes of adoption, the state of Illinois does not impose any additional requirements that must be met in order for the child to enter the State of Illinois. Be advised, however, that for children who must be adopted in Illinois, the Illinois Adoption Act mandates post placement supervision for a six month period prior to finalization of an adoption. Illinois law also requires an "investigative" report be submitted to the presiding judge with a recommendation for adoption before a final adoption decree can be entered on behalf of (PG). Be advised that our office will arrange post placement supervision with the Department of Children and Family Services and the required "investigative report" as a courtesy to the High Court of the United Kingdom.

4. Although this statement is not quite what we envisaged in paragraphs 32 and 36 of our previous judgment, we take it as meaning that provided an order is made under section 84(1) of the Adoption and Children Act 2002, and provided all the requisite English procedures have been fulfilled (i.e. once PG has been "qualified") the American Adoption Agency's view is that PG will be authorised to enter Illinois, and that – subject to post placement supervision and a favourable "investigative" report by the American Adoption Agency - a final adoption order is likely to be made.

5. In our judgment, therefore, the terms of the letter sufficiently satisfy the terms of Regulation 10(b)(iv).

6. In relation to Regulation 10(c) - also set out in paragraph 14 of our previous judgment - the American Adoption Agency's letter simply re-iterated what it had said in answer to Regulation 10(b) (iv). This led to a further letter dated 3 March 2008 from the senior solicitor for the local authority to the American Adoption Agency asking whether or not it was sufficient for only one of the prospective adopters physically to accompany PG from the United Kingdom to the United States. In an Email dated 4 March 2008, the American Adoption Agency confirmed that its reference to the State of Illinois not imposing any "addition requirements that must be met in order for PG to enter the State of Illinois" was meant to convey the message that neither the American Adoption Agency nor the authorities in the State of Illinois had a view on the matter. The Email thus concludes: "We will leave that to others to determine what is in her best interest as to who or how many people accompany her".

7. As we state in paragraph 37 of our previous judgment, this was a point which concerned us, although we were assured that there would be no difficulty in both Mr and Mrs C accompanying PG from the United Kingdom to the United States. As we now know that the relevant authorities in Illinois do not insist on both Mr and Mrs. C accompanying PG, we are content to leave this matter to the good sense of PG's prospective adopters. Whilst we think it would be preferable if both accompanied her, we do not need to make any order about it, and we take the view that Regulation 10(c) is satisfied. Before PG is taken to Illinois, however, Mrs. C should formally file with the county court her confirmation that she will accompany PG from the United Kingdom to Illinois.

8. As all the parties to the proceedings (apart from Mr and Mrs C, who were in person) were – in one way or another - in receipt of public funding, we acceded to a proposal from the guardian's solicitor that, provided there was agreement on all sides to this course, the appeal could be disposed of without a further oral hearing. The solicitors for PG's mother, whilst stating that they were "still not completely convinced that sufficient evidence has been adduced to satisfy Regulation 10(b)(iv)" accepted that this was a matter for this court to decide, and did not feel that a further hearing was necessary. The local authority was content to deal with the matter in this way, as were PG's prospective adopters.

9. In these circumstances; (1) we give the local authority and the guardian permission to adduce fresh evidence in the form of the recent exchange of correspondence between the American Adoption Agency and themselves; and (2) we dismiss the mother's appeal against the judge's order made on 1 February 2008.