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Placement, Assessment & Adoption Overseas after A (A child)

In what circumstances can a local authority place a child overseas for assessment, placement or adoption? Lucy Reed of St Johns Chambers looks at the impact of the recent decision in A (A Child)

iamge of Lucy Reed, barrister, St Johns Chambers, Bristol

Lucy Reed, St Johns Chambers

Judgment in the case of A (A Child) [2009] EWCA Civ 41 was handed down by the Court of Appeal on 5th February. It runs to some 33 pages and reprises the provisions of The Children Act 1989 and The Adoption and Children Act 2002 and the associated secondary legislation in relation to overseas adoptions. The lead judgment was given by Wall LJ, with a supplementary judgment from Moore-Bick LJ. Thorpe LJ concurred.

The issue at hand in this case was whether the child’s ‘home’ with prospective adopter(s) during the period of 10 weeks immediately prior to the making of an order for parental responsibility under s84(1) of the 2002 Act had to be in England & Wales or whether it could be with the prospective adopters, wherever they happened to be living (in this case the USA).

The facts of the case can be summarised as follows: A care order had been made in relation to the child in January 2007 and the care plan was for adoption. Various potential adopters from within the extended family had been ruled out, and the only viable family members were based in the USA. If the US relatives were unable to adopt the child within appropriate timescales the plan was to place outside of the family but within the jurisdiction. No placement order had been made. The care plan had been formulated in a careful and detailed way, setting out the various stages leading up to the eventual placement. The care plan is set out in full at pa 9 of the judgment and was clearly considered by the court to be a model of good practice. It is worth reading.

The Local Authority sought (pursuant to the staged care plan) to obtain approval for the removal of the child to the USA under Paragraph 19 of Schedule 2 to the Children Act. An issue was whether that permission could lawfully be granted.

Charles J at first instance had felt compelled to refuse permission on the grounds that he would place himself in conflict with other High Court authority and with the ‘underlying assumption’ of the Court of Appeal in Re G [2008] EWCA Civ 105, [2008] 1 FLR 1484 & 1497. He had also expressed anxiety about whether or not it was appropriate for the system of overseas adoption to be governed by piecemeal development through case law rather than detailed regulations [paragraph 12].

The case helpfully reviews other authorities which have dealt with the question of overseas adoption since the implementation of the 2002 Act:

• In Re G [2008] EWCA Civ 105, [2008] 1 FLR 1484 & 1497 the ten week period had been spent in the UK, but one of the two prospective adopters had only been present in England for 3 of those 10 weeks. In that case the questions were firstly whether or not the 3 weeks was adequate to satisfy s84(4) of the 2002 Act and secondly how to escape from the catch 22 of requiring a visa prior to the making of a s84 parental responsibility order and also of requiring such an order as a precursor to obtaining the visa.

In that case the question of whether or not ‘home’ for the purposes of s84(4) could be outside the jurisdiction was not addressed and any remarks contained in that judgment are therefore obiter. They did not assist the Court of Appeal in the task at hand in A (A Child), which was essentially one of statutory construction.

• H City Council v B and others [2004] EWHC (Fam) 3437 (in fact a 2005 decision) was referred to and although in that case McFarlane J held that the 10 week period had to be spent in England & Wales he had done so reluctantly and without the benefit of full argument. In any event his decision was not binding upon the Court of Appeal.

• Consideration was also given to the case of ECC v M and Others [2008] EWHC 332 in which the separate requirement under s42(7)(b) of the 2002 Act for the child to have a ‘home’ in the area of an English / Welsh local authority in order for that local authority to have ‘sufficient opportunities to see them in the home environment’ together meant that a s84 order was not viable. In that case Black J distinguished between children being removed from the UK ‘for the purposes of adoption’ and those who were ‘placed for adoption’.

Pa 19 of Schedule 2 Children Act 1989 provides for the court to approve the removal of a child in the care of a local authority to another jurisdiction. Subparagraph (9) provides that this paragraph does not apply to a local authority placing a child for adoption with prospective adopters.

In ECC v M the court was able lawfully to permit the child to be placed abroad pursuant to paragraph 19 of Schedule 2 of the Children Act 1989 because in the absence of parental consent or a placement order the child could not be said to have been ‘placed for adoption’ and thus pa 19 Sch 2 was not excluded. This, coupled with the judgment of the court which was made available to the US Immigration authorities in order to assist in the pursuit of an ‘orphan petition’ to enable the child to gain entry to the US, was intended to support a care plan of eventual adoption in the USA if possible.

• In the case of Plymouth City Council v CR & Others (unreported 13 June 2006) an order was made under paragraph 19 of Schedule 2 of The Children Act 1989 in the context of a care plan for permanent placement (following assessment) with extended family members abroad, possibly in the shape of adoption. The prospective adopters could not come to England for the 10 weeks required under s84. Because no final decision had yet been reached and adoption was one of a whole range of possible options it was lawful for the child to be sent abroad under schedule 2 to the 1989 Act without offending against ss84 and 85 of the 2002 act.

As articulated by the Court of Appeal in its judgment in the instant case ‘thus, where the decision to send a child abroad is part of an inchoate care plan, in which adoption is but one of the possible options, the child is not being ’removed for the purposes of adoption’ contrary to s85(1) of the 2002 Act.

The Court of Appeal adopted as un-contentious Charles J’s enunciation of the need to prevent child abduction and trafficking, to ensure secure attachments and stable placements, for rigorous investigation and safeguards prior to the making of either a domestic adoption order or a s84 order prior to adoption abroad, and a need to avoid a child being left adrift abroad if the adoption or placement did not take place. Charles J had concluded that permission could be given 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 is to live would be the most appropriate welfare solution for the child throughout his or her childhood.

The Department for Children Schools and Families intervening submitted that it was a matter for Parliament through regulatory amendments to undertake any necessary attenuation of the 10 week rule, and not the courts, and that the Department intended to make amendments to relax the current requirements. The Court of Appeal however took the view that the task at hand was the interpretation of the existing statutory and regulatory material and that the question of whether or not those regulations needed amending was quite distinct. The court would interpret the existing legislation insofar as was possible to as to promote the parliamentary intention of promoting the welfare of the children concerned.

In considering the meaning of the phrase ‘home’ in s84(4) of the 2002 Act the court took into account the absence of any geographical definition, and the fact that in such cases the applicants with whom the child was to live would naturally have their true home outside the jurisdiction. In attempting to do justice to the public policy behind the act the court had regard to the need to work towards the best interests of children, noting that in the instant case – as a paradigm example - if the child could not spend time with the family members in America she could not be adopted within her wider family and would have to be found prospective adopters within the UK who were strangers.

As in ECC v M the child could legitimately be sent abroad for assessment (rather than adoption) under pa 19 Sch 2 Children Act 1989, with adoption merely as one of the possible outcomes of that assessment (albeit the preferred option).

As a matter of construction there was no difficulty in the child then being placed by an adoption agency. There would be sufficient opportunities for the agency to observe the child in the home environment in the USA under the guise of Sch 2 Children Act 1989, thereby satisfying s42(7)(a), and for the ten weeks preceding the making of the s84 order the child’s home would have been with the prospective adopters, thereby satisfying s84(4). By the time s42(7) came into play the Local Authority would have become an adoption agency by virtue of the s84 order and s42(7)(b) rather than s42(7)(a) would apply and that subsection could be satisfied by the Local Authority qua Adoption Agency observing the home in the USA (the court accepting that in a s42(7)(a) case the opportunities to observe the home were required to be within the jurisdiction).

In spite of this judgment it remains the case that the implementation of care plans for adoption abroad, and in particular to the USA, are fraught with difficulty. It will remain necessary in each individual case to assess the complexities of the legal framework both here and in the receiving state, and to analyse these in the context of the facts in each individual case in order to identify possible difficulties in overcoming the various legal requirements. It will be prudent and often essential to seek suitably expert advice on foreign immigration and adoption systems at an early stage. The preparation of a rigorous and detailed care plan setting out each legal and practical step and contingency plans is likely to be an essential tool in such a process.

The judgment in A (A Child) [2009] EWCA Civ 41 is a complicated one which will bear reading and re-reading, and which will be a helpful tool to the court and legal advisers in future cases, not least because it sets out and analyses in detail other authorities and public policy issues applicable to this area of law.


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