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Parental consent can be dispensed with in Hague Convention adoption in absence of public law proceedings

President gives judgment in‘unusual and difficult’ international adoption case

Sir James Munby, the President of the Family Division, has determined that it is possible to dispense with parental consent in a Hague convention adoption in the absence of public law proceedings.

The President considered the matter in Re S and T (Children) [2015] EWHC 1753 (Fam) but declined to dispense with consent on the facts of the case.

The father abducted the children to Pakistan in December 2012 following mother's diagnosis with cancer.  In March 2013, they were returned to their mother's care in England pursuant to orders in the English and Pakistani courts.  Their mother "died, tragically young" in September 2013 and the children were cared for in England by the maternal family.  In April 2014, a maternal aunt and uncle who are resident in Chicago issued an application in the High Court for the children to live with them in the USA.  Father returned to England to contest the proceedings and in October 2014 Sir Peter Singer made a number of findings mostly adverse to the father.  The maternal aunt and uncle were then advised that in order to satisfy USA immigration requirements, they would need to adopt the children.  The children's guardian reported in December 2014 that: "If there was no one but the children's father to care for them it is likely that despite his deficits he might be considered good enough. However there is an alternative, [adoption by the maternal aunt and uncle, and] I take the view … that this is preferable and in the children's best lifelong interests."  The local authority refused to issue public law proceedings and the matter came before the President for decision on the maternal aunt and uncle's application for an order pursuant to section 84 Adoption and Children Act 2002 prior to proposed adoption in the USA.  At the date of the hearing in May 2015, the children had been living with the prospective adopters in Chicago for nine months.

The President found that:

  1. A plain reading of sections 44(9)(b) and 42(7)(b) of the 2002 Act requires the prospective adopters to have their home in England and Wales for the purpose of giving notice to, and being assessed by, a local authority, even if ordinarily resident abroad.
  2. The three successive court orders giving the prospective adopters temporary leave to remove the children to the USA for 90 days at a time had not displaced the children's habitual residence in England and Wales.
  3. There is nothing in section 84 of the 2002 Act or the 1993 Hague Convention on Inter-country Adoption precluding the court from dispensing with parental consent in an appropriate case in the absence a care or placement order.  To the extent that FPR 2010 r. 14.9(1) suggests otherwise in a Convention adoption, it cannot go behind the meaning of the Act or Convention.
  4. Applying the principles in In re B-S (Children) [2013] EWCA Civ 1146, [2014] 1 FLR 1035, the prospective adopters have to demonstrate that "nothing else will do" other than adoption in order to dispense with parental consent. The immigration requirements and the family relationship of the prospective adopters do not displace this requirement.  On the facts of this case they were unable to discharge that burden.

Damian Garrido QC and Edward Kirkwood both of Harcourt Chambers (instructed by Turpin & Miller) represented the prospective adopters; Janet Bazley QC of 1 Garden Court and Mark Jarman of 4 Paper Buildings (instructed by Freemans) represented the children's father; John Vater QC also of Harcourt Chambers (instructed by Reading Borough Council) represented the local authority; and Robin Barda also of 4 Paper Buildings (instructed by Cafcass Legal) represented the guardian.

The judgment can be found here.

David Marusza, barrister, Harcourt Chambers