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Children: Public Law Update: Foreign Adoptions

Adoptions involving a foreign element have been the subject of several recent important cases. Alex Verdan QC of 4 Paper Buildings, in a supplement to his regular Public Law Update, reviews the cases and judicial thinking on the subject.

image of Alex Verdan QC 4 Paper Buildings

Alex Verdan QC, 4 Paper Buildings

There have been a number of reported cases this year which have grappled with the complex legal provisions which arise in respect of adoption by prospective parents from overseas under the 2002 Act and the Regulations.

Under section 49 of the 2002 Act, to adopt in the UK, one of the adopting couple must be domiciled in a part of the UK or both must have been habitually resident for not less than 1 year. This condition of domicile or residence is an effective bar preventing foreigners adopting in the UK.

Section 85 of the 2002 Act restricts the removal of children from the UK for the purposes of adoption unless the prospective adopters have parental responsibility under section 84. A section 84 order may not be made, by reason of sub section (4) unless “at all times during the preceding 10 weeks the child’s home was with the applicant or, in the case of an application by two people, both of them.”  Regulation 11 of The Adoption with a Foreign Element Regulations 2005 provides that section 42(7) of the 2002 Act applies to section 84. Section 42(7) provides that “an adoption order may not be made unless that court is satisfied that sufficient opportunities to see the child with the applicant in the home environment have been given …to the local authority within whose area the home is.” These provisions seem to suggest that foreign adopters have to come and live with the child in this country for 10 weeks although there is no definition of “home” under the 2002 Act. If so this is a very onerous obligation which many foreign adopters will be unable to satisfy. In addition, Regulation 10(b)(iv) provides that prior to the making of a section 84 order the relevant foreign authority shall confirm in writing to the adoption agency that the child will be authorised to enter and reside permanently in the foreign country.

Paragraph 19(1) of Schedule 2 of the Children Act 1989 provides that “a local authority may only arrange for, or assist in arranging for, any child in their care to live outside England and Wales with the approval of the court.” Paragraph 19(6) states that “section 85 of the Adoption and Children Act 2002 shall not apply in the case of any child who is to live outside England and Wales with the approval of the court given under this paragraph.” Paragraph 19(9) states that “this paragraph does not apply to a local authority placing a child for adoption with prospective adopters.”

These points was considered by the High Court in ECC v M & Ors [2008] EWHC 332 (Fam) - a case where the proposal was placement of the child in the USA with relatives, the relatives not being able to be in the UK. Black J approved the dictionary definition that “a home was the fixed residence of a family…the dwelling in which one habitually lives” whilst acknowledging that the question must be one of fact in any given case. The Court considered that it would be difficult for prospective foreign adopters ever to satisfy the requirements of the legislation and establish a home here for the purposes of section 84.

In ECC, to satisfy English law, the Court relied on paragraphs 19(1) and (6) to give approval to the local authority to arrange for the child concerned to live outside England and Wales concluding that removal “for the purposes of adoption” was permissible whilst removal “for placement for adoption” was not. 

In ECC, Black J distinguished between ‘a local authority placing a child for adoption with prospective adopters’ (which is excluded by para 19(9) from the ambit of CA 1989, Sch 2 para 19) and a child who is removed from the jurisdiction ‘for the purpose of adoption’ (which, she held, was, by the operation of para 19(6) and ACA 2002, s 85, included within the ambit of Sch 2, para 19). The ‘placing’ of a child to which Sch 2, para 19(9) refers is limited to formal ‘placing of a child for adoption’ under the provisions of ACA 2002, ss 18-29. Thus, where the arrangements for the child to go abroad fall outside those of a local authority ‘placing’ him for adoption, but are nevertheless more generally ‘for the purpose of adoption’, the court may sanction those arrangements under CA 1989, Sch 2, para 19 without the need for an order facilitating adoption abroad under ACA 2002, s 84 and without contravening the restrictions in ACA 2002, s 85.

In Re G (A Child) [2008] EWCA Civ 105 the foreign adopters came to the UK and set up temporary home here. For the full relevant 10 weeks the female applicant had full time care of the child. The male only spent 3 weeks with the child as he had to return to the USA on business. The Court of Appeal held that the natural meaning of the words in section 84 “has home with” did not mean “continually in the care of.” The phrase was not capable of precise definition but depended on the circumstances and was a question of fact and degree. The physical presence of the male applicant throughout the 10 weeks was not necessary especially as his presence for 3 weeks was plainly sufficient to enable a satisfactory assessment. The Court also held that the confirmation required pursuant to Regulation 10(b)(iv) need not be absolute, unconditional or unqualified but rather could be to the effect that, provided that all the relevant procedures in the UK and any adoption-related procedures under the law of the foreign state, which were pre-requisites to the child being allowed into the state, were followed, then from its experience and knowledge  the foreign authority considered that the child would be authorised to enter the foreign state.

In London Borough of Haringey v MA & Ors [2008] EWHC 1722 (Fam) Charles J held that permission could lawfully be given for a local authority to arrange for a child to live outside the UK for the purposes of an investigation and assessment of whether adoption abroad by the persons with whom the child was to live would be the most appropriate welfare solution throughout childhood pursuant to paragraph 19 of Schedule 2 of the Children Act. Parliament had intended there to be a difference between the concept of a removal from the UK ‘for the purpose of adoption’ and ‘placing a child for adoption with prospective adopters.’ Charles J also considered that under section 84(4) of the 2002 Act all or part of the 10 week period could be spent abroad. Finally Charles J held that the home environment for the purposes of section 42(7)(a) of the 2002 Act was not necessarily confined to one in this country. However, in light of the above authorities and the earlier decision of McFarlane J in H County Council v B [2005] EWHC 3437, he decided that it would not be right to allow the child in question to be placed in the USA under paragraph 19 or to make a declaration that the section 84(4) period could be spent abroad as this would create divergent authority and so confusion. The local authority was given permission to appeal. The appeal in this case is being heard on 1 December 2008.

Charles J therefore held that there is a distinction between (a) cases in which a child in the care of a local authority is placed for adoption abroad by that local authority with applicant(s) for an order under s. 84 (after the child has been placed abroad with them for assessment and has therefore had a home abroad with them), and (b) other placements relating to a foreign adoption and such an application.  The distinction is that in the former case the child’s home with the applicant(s) does not have to be in this country. This approach accords with that of Black J in ECC v M distinguishing a local authority ‘placing’ for adoption (which must accord with ACA 2002, s 84) and a lesser state of authorising a child to travel abroad for the purposes of adoption (which does not involve s 84 and is achieved by authorisation under CA 1989, Sch 2 para 19).

In addition, in Haringey v MA, Charles J held that (in contrast to the similar requirement in ACA 2002, s 84(4)), the requirement of ACA 2002, s 42(7)(a) (which must be met in a s 84 application) in an agency placement case for the local authority to have sufficient opportunities to see the child in a home environment with the applicants is not confined to a home in England and Wales.

It is worth noting that there is power to modify the provisions of section 85 by Regulations e.g. to dis-apply them to relatives but this has not been done yet and is not currently planned.

Alex Verdan will be chairing and speaking at Lime Legal's Public Law Children Conference in London on 4 December. For more information visit www.limelegal.co.uk