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Re A [2017] EWHC 1178 (Fam)

Application for adoption where the applicant was the maternal aunt of the person to be adopted who was a citizen of Pakistan aged 19 years at the date of the hearing.

This was an application for adoption with a number of unusual characteristics.  The applicant was the maternal aunt of the person to be adopted who was a citizen of Pakistan aged 19 years.  The applicant had brought up her niece since the death of her mother some years previously and now both parties wished the aunt to adopt her niece.  Furthermore, the report from the relevant Social Services department was positive and supportive of the adoption.

However, Holman J was unable to make the final order for adoption for two reasons.  Firstly, as this was an application that may have an impact on any application for British citizenship by the person to be adopted, it was necessary to give notice to the Home Office and the Secretary of State (see In Re W (A Minor) (Adoption: Non-Patrial) [1986] Fam 54 and Practice Direction 14B to the Family Procedure Rules).  The fact that both parties are habitually resident in this country makes no difference to this requirement.  The application therefore had to be adjourned so that notice could be given.

Secondly, a person over the age of eighteen years can be adopted only if the application is received before their eighteenth birthday: s. 49(4), Adoption and Children Act 2002.  In this case, the application form was received by the Court the day before the person to be adopted turned eighteen, but it was not issued until some eight days after her eighteenth birthday; moreover, there was some confusion as to whether the application was complete when it was lodged with the court or whether some of the documentation was received after the person to be adopted had turned eighteen.  A further, and quite separate, reason for adjourning the application was therefore to seek clarification as to what had happened and when in terms of documentation.

Summary by Sally Gore, barrister, Fenners Chambers
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No. FD16P00645
Neutral Citation Number:
[2017] EWHC 1178 (fam)

IN THE HIGH COURT OF JUSTICE  
FAMILY DIVISION

Royal Courts of Justice

Tuesday, 2nd May 2017

Before:

MR JUSTICE HOLMAN
(In Private)

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B E T W E E N :

ZK
 Applicant
-  and  -
SNA Respondent
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Transcribed by Opus 2 International Ltd.
(Incorporating Beverley F. Nunnery & Co.)
Official Court Reporters and Audio Transcribers
5 New Street Square, London.  EC4A 3BF
Tel:  020 7831 5627     Fax:  020 7831 7737
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MR BEDINGFIELD appeared on behalf of the Applicant.
THE RESPONDENT appeared in person.
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J U D G M E N T
MR JUSTICE HOLMAN:

(Transcript prepared without the aid of documentation)
1. An adoption application is listed before me today for final hearing, in the following circumstances.  The essential facts are that the person to be adopted was born on 31st January 1999.  Accordingly, she attained the age of eighteen on 31st January 2017 and is now aged eighteen.  She is of Pakistani descent and is currently a citizen of Pakistan and no other state.  She is the younger of the two daughters of the marriage of her parents.  Tragically, that marriage broke down and her parents became divorced.  Even more tragically, her mother died several years ago after a long and heroic struggle with cancer.

2. As a result of these events, the person to be adopted has herself  lived lawfully in England and Wales for a long time with her maternal aunt, namely the sister of her late mother.  The aunt herself is a British citizen and has lived here for many years.  The father lives in the Middle East.  An application has now been made by the aunt to adopt the person concerned.  

3. I have before me a report prepared by a social worker for the London Borough within which the aunt and person to be adopted live, which is very positive indeed and very strongly supportive of an adoption order being made.  The person to be adopted is in her last term at a well-known school in England where she is achieving exceptionally well.  She already has an offer of a place at Oxford University, and is clearly a person of great achievement.  She herself strongly desires to be adopted by her aunt, whom she clearly now regards as her parent in the sad circumstances that I have briefly described.

4. Amendments to the law made by the Adoption and Children Act 2002 clearly have the effect that a person may be adopted right up to the time that they attain the age of nineteen, even after they have attained the age of eighteen and are in law already adult, as this person is. 

5. I am unable to make a final adoption order today for two reasons.  The first is that no notice of this adoption application has been given to the Home Office.  I myself have been engaged in the field of adoption now for well over forty years,  first as a barrister, and now for a long time as a judge.  Throughout all that time it has, in my experience, been axiomatic that notice of any adoption application which may impact on the grant of, or obtaining British citizenship should be given to the Home Office and the Secretary of State for the Home Department.  Clear authority for that at the level of the Court of Appeal is the case of In Re W (A Minor) (Adoption: Non-Patrial) [1986] Fam 54. 

6. There is a current Practice Direction to the Family Procedure Rules 2010, namely Practice Direction 14B, which refers to "The First Directions Hearing – Adoptions with a Foreign Element."  At paragraph  2 of that Practice Direction, there is provision that:

"At the first directions hearing the court will… (d) give directions about: … (ii) the need for … a representative of the Home Office to attend future hearings…" 

To my mind, this adoption application is clearly one for an adoption "with a foreign element", albeit that it is not one that falls within the precise terms of paragraphs (a) to (e) of paragraph 1 of that Practice Direction. 

7. There was a first directions hearing in this case on 2nd March 2017, but counsel, who appears today on behalf of the applicant and who also appeared at that hearing, has frankly told me that this question of whether or not notice should be given to the Home Office was not raised with the court at that hearing, nor considered by the judge on that occasion of his own initiative.

8. In his most excellent case summary for the purposes of today's hearing, counsel wrote:

"Because both [the person to be adopted] and [the applicant] are habitually resident in the United Kingdom, it is contended that the Home Office need not be served with these proceedings." 

I regret to say that I very firmly disagree with that particular submission and proposition.  Undoubtedly, both the person to be adopted and the applicant are habitually resident in the United Kingdom, but that does not seem to me in any way at all to diminish the importance of the Home Office and Secretary of State for the Home Department being able to make submissions, if they or she wish, in a situation such as this. 

9. During the course of the hearing this morning, counsel has made the separate point that because the person to be adopted is no longer a child, having attained the age of eighteen, the making of an adoption order would not automatically confer British citizenship upon her.  However, counsel has also readily accepted that the making and fact of an adoption order would be liable considerably to strengthen any subsequent application which the person to be adopted might make for the grant of British citizenship.  It seems to me that even in a situation in which British citizenship is not automatically conferred by the making of an adoption order, it is still necessary and important that notice should be given to the Home Office before the making of the adoption order, rather than that on a subsequent application for citizenship the Home Office should be presented with the fait accompli of an adoption order having been made.

10. Counsel submitted that it was unlikely that, on the facts and in the circumstances of the present case, the Home Office or the Secretary of State would actually wish to resist, or make representations upon, the application for an adoption order.  That may or may not be so, but it does not seem to me to be any reason for not giving prior notice and the opportunity for doing so.

11. So for that reason, in any event, I regret that I feel unable finally to resolve this application for an adoption order today.  I will give directions to the effect that notice of these proceedings and a complete set of the documents, including the report by the social worker and this independent, must be sent to the Home Office, who will then have an opportunity to participate in the proceedings, if and to the extent that the Secretary of State for the Home Department wishes. 

12. A separate and unrelated issue has in fact surfaced during the course of the hearing this morning.  As I have said, the person to be adopted attained the age of eighteen on 31st January 2017.  Section 49 (4) of the Adoption and Children Act 2002 provides as follows: 

"An application for an adoption order may only be made if the person to be adopted has not attained the age of eighteen years on the date of the application." 

This person attained the age of eighteen years the moment the clock ticked past midnight between 30th and 31st January 2017.  That has the effect that the application could only be made on or before 30th January 2017. 

13. Examination of the court file shows that the adoption application in this case was formally issued by the court office on 8th February 2017.  However, dates inserted on the formal application for an adoption order in prescribed form A58 show that the "Date Received by the Court" was 30th January 2017, and the "Date Issued" was 8th February 2017.

14. There are in fact some memos and emails internal to the court on the court file, which seem to indicate that the reason why the application was only issued on 8th February 2017 was because the court office was awaiting the "child's" original birth certificate.

15. There is also upon the file a letter to the court from the applicant's solicitors which is clearly dated 2nd February 2017, and has a received date stamp upon it by the court of 3rd February 2017.  That letter says:

"Further to our telephone conversation we now enclose:

(1) Updated form A58 in triplicate,

(2) Statement of facts in triplicate,

(3) Certified copy passport for [the person to be adopted],

(4) Certified copy of the photo page of the applicant's UK passport." 

All this leads to some uncertainty today as to what exactly was lodged with the court, and when.

16. I do not propose by this judgment and anything I do or say today, to rule in any way at all upon the meaning and scope and effect of section 49 (4) of the 2002 Act.  That sub-section merely employs the phrase "on the date of the application."  As counsel for the applicant submitted today, it may strongly be argued that "the date of the application" should not be the date when staff in the court office got around to "issuing" an application, but rather the actual date upon which the application was lodged with the court.  That said, any application may have to be one which sufficiently complies with the requirements of the rules and the prescribed forms.  To take an extreme example, section 49 (4) would be unlikely to be satisfied by simply lodging with the court some very informal form of application, such as a letter.

17. The representative of the applicant's solicitors, who is in court today, is himself unclear exactly what documents were lodged with the court and when, and the extent to which that was done by handing them in to the court office or sending them by post.

18. The provisions of section 49 (4) of the Act are clearly absolutely mandatory, and the court can only lawfully make an adoption order in the present case if it can be satisfied that "the date of the application" was not later than 30th January 2017.  Accordingly, and quite separately from making provision today for notice to be given to the Home Office and the Secretary of State, I also propose to order that: "The solicitor for the applicant must file and serve by 31st May 2017 a detailed statement by a suitably informed person, as to the precise method by which the application in this case was made to the court, what documents were filed with the application in form A.58, and the precise date or dates upon which the application and any supporting documents were respectively filed."

19. The order will then provide that this application be listed for final hearing towards the end of July, so as to enable the Secretary of State to participate to the extent if any that she wishes, and also so that at that hearing the court can consider and rule upon the question whether the person to be adopted had not attained the age of eighteen years on the date of the application, as section 49 (4) of the Act requires.

20. For these reasons, I regret that I am unable today finally to resolve this matter, although I stress that upon the facts and the merits the case for adoption in this case does seem to be clear and strong.