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MW (A Child) [2014] EWHC 385 (Fam)

Application for leave to apply for an adoption order in respect of a child who is 17: s.42 Adoption and Children Act 2002.

Holman J was faced with an application for leave to apply for an adoption order in respect of a child aged 17¼. The relationship between the applicant and child was that of first cousins once removed.

The child was born and brought up in Pakistan where he lived with his parents. He was brought to England by his father in the summer of 2012 on a six month visa. Shortly thereafter he began living with the applicant, since when the father is believed to have returned to Pakistan.

In the circumstances of this applicant, leave to make an adoption order was required as the child had not had his home with her for at least three out of the five years preceding the application (s.42 Adoption and Children Act 2002). In any event the cut off age for making an adoption order is when the child turns 19 years old.

In support of the application the child had provided a statement indicating that he had been the victim of physical and emotional abuse by his parents. He said that he had bonded and settled well in the home of the applicant and that he had formed a brotherly relationship with the applicant's two sons, who are around the same age as him.

The applicant had provided a copy of a document signed by the father indicating his consent to the adoption. In respect of the mother there was no evidence as to her state of mind in relation to adoption.

It was noted that the child had overstayed and so had no lawful right to remain in the UK. The Home Office was on notice as it had replied to a request for information in respect of the child. Holman J recorded that the Secretary of State did not appear to be taking any active steps to seek to remove the child.

In considering the test for leave the judge considered that the child's welfare is not the paramount consideration but that the court must consider and give weight to the welfare of the child concerned. The court must also consider whether the application "appears to be one made in good faith" and whether it has "a reasonable or realistic prospect of success". 

In granting leave Holman J took into account that the child himself supported the application and that, because of the child's age, without leave the application could not succeed. He described as "very concerning" the prospect that the case may be contrived to gain permanent immigration status and citizenship for the child and he emphasised that the application would require much greater investigation. Nevertheless he said that the applicant had, on the face of it, provided a credible account and that there was no obvious evidence to suggest that either the applicant or the child had colluded to make the application for an ulterior motive.

The judge made clear that an adoption order would be unlikely to be made unless both parents have been served with the application and their views ascertained. He also said that, if the Secretary of State for the Home Department resists the making of the order, then her resistance will be relevant, although not of itself decisive. The judge directed the local authority to undertake a full investigation and for the Secretary of State for the Home Department to be kept updated and sent a copy of the local authority's report. He told the applicant that she was under a "heavy duty" to locate and inform both birth parents.

Summary by George Gordon, barrister, 1 King's Bench Walk

Case No. BD12Z01801
Neutral Citation Number: [2014] EWHC 385 (Fam)


Leeds Combined Court
1 Oxford Row
Monday, 27th January 2014


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In the matter of:

Re: MW (A Child)
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Transcribed from the Official Tape Recording by
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Counsel for the local authority: MS M.SMITH
Mrs AS appeared in person, assisted by her McKenzie friend, Mr K
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1. A lady called FAS is seeking to apply to adopt a young man, MW.  M was born on 18 November 1996, so he is now aged about 17¼.  As I understand it, the actual relationship between Mrs AS and M is that they are first cousins once removed.  That appears from paragraph 4 of the first statement of AS dated 17 December 2013.  She explains there that her late father was the brother of M's paternal grandmother.  It follows from that, if correct, that Mrs AS is the first cousin of M's father and, accordingly, the first cousin once removed of M himself. 

2. In November 2012, Mrs AS issued in the Bradford County Court what was in form an application for a convention adoption order.  Since the other country involved, namely Pakistan, is not a party to the relevant convention, that application, as such, was misconceived.  However, she later issued a fresh application seeking simply an adoption order.  Section 42 of the Adoption and Children Act 2002 has the effect that someone in the situation of Mrs AS cannot apply for an adoption order unless the child concerned has had his home with her for not less than three years during the period of five years preceding the application.  In this particular case, it was only in October 2012 that M began to have his home with the applicant.  That is only now about 16 months ago.  However, section 42(6) of the Act provides that, '…but subsections (4) and (5) do not prevent an application being made if the court gives leave to make it.'  Accordingly, by an application notice dated 17 December 2013 AS has now applied to the court for leave pursuant to section 42 (6) to make an application for an adoption order.

3. In support of that, there is the statement of AS dated 17 December 2013 and also a statement (which in my bundle is unsigned and undated) which purports to have been made by M himself.  From those documents and indeed some answers supplied by the Home Office in answer to a request to it, the essential facts appear to be that M was born and brought up in Pakistan where he lived with his parents.  At some stage, his parents seem to have separated.  In his statement M says:

'All I remember is being severely blamed and admonished by my parents.  All my life I have yearned for love and affection from my parents and I find it difficult to control my emotions…  My upbringing has been full of indescribable atrocities and calamities and it is best that I don't mention anymore, otherwise I will not be able to continue with my statement.' 

He then describes his father as a 'cantankerous dad' and he describes how he received a permanent injury to his face during the course of an altercation between his parents.

4. It appears that in the summer of 2012 M's father brought him to England.  They both had a visa of six months' duration.  However, in September 2012, there was a meeting between M and Mrs AS and, as I have said, since October 2012 he has in fact lived with her.  His father appears to have returned to Pakistan.  In his statement, M describes, in summary, how he has bonded and settled very well in the home of Mrs AS and that he has formed a brotherly relationship with her own two sons, who are around the same age as him.  He states in his statement that he:

'…reached a decision that perhaps I was born to join the family of Mrs F AS…  I am thoroughly thrilled with my new life and I am very lucky to be in the surround of my mum, F AS…  My mum loves me to bits and always watches over me.  She is a best mum in the world one can ask for …'

5. Mrs AS does say in support of her application that the birth father of M has actually signed in November 2012 a formal written consent to the adoption of M.  I have seen a copy of the document upon which she relies and, for the purposes of today's application only, I will take that at face value.  There is, however, nothing at all from M's mother and no evidence at all as to her state of mind in relation to adoption. 

6. It is, of course, clear that M has now long overstayed and has no lawful right to be in the United Kingdom at all.  However, the Secretary of State clearly has knowledge of this case, if only as a result of the request for information that was sent to her.  At the moment, the Secretary of State does not appear to be taking any active steps to seek to remove M. 

7. Section 42 of the Adoption and Children Act 2002 does not itself state or indicate any test to be applied by the court on an application for leave.  The notes in the 2013 Family Court Practice at page 322 make reference to certain authorities, which, however, I have not myself seen today.  It is obvious that on an application of this kind the welfare of the child is not the paramount consideration.  Clearly, however, the court must consider and give weight to the welfare of the child concerned.  The court must consider whether the application appears to be one made in good faith and for good and appropriate reasons; and the court must consider whether the proposed application has at least a reasonable or realistic prospect of success.  I cannot see on the facts and in the circumstances of this case that there is likely to be any significant harm or upset to M if the application is made.  Indeed, the tenor of his own purported statement is to the effect that he already regards the applicant as his 'mum' and would appear himself to wish to be adopted. 

8. It is, of course, very concerning in a situation such as this that this may be a contrived application, designed, perhaps as a result of some collusion, to gain permanent immigration status and citizenship here for M.  I am very alert to that possibility and, unquestionably, it will require to be much more closely investigated.  On the face of it, however, Mrs AS has given a credible account in her statement dated 17 December 2013 as to how M was brought here and came to live with her.  There is nothing in her account to suggest that she, at any rate, was party to collusive or contrived arrangements.  The purported statement of M tells a sad story of his childhood and upbringing in Pakistan and seems to show a genuine psychological desire on his part to become a full adoptive member of the family of Mrs AS.  There is nothing in his statement obviously to suggest that he has colluded in some plan or arrangement to gain immigrant status for him. 

9. I have made crystal clear to Mrs AS today, and spell it out very, very clearly indeed on the face of the order, that the decision today is a decision on leave only.  The question whether or not the court will actually make an adoption order is unclear and uncertain, and an adoption order may not be made.  In any event, it is unlikely that an adoption order will be made unless both birth parents have been clearly served with the application and their views ascertained.  Further, if the Secretary of State for the Home Department resists the making of an adoption order, her resistance will clearly be relevant to the court's final decision whether or not to make an adoption order, although it would not of itself be decisive. 

10. However, with all those points stressed and spelled out, I have to say that this proposed application is one that does seem to me to have a reasonable or realistic prospect of success.  If the facts have been truthfully stated by Mrs AS and M himself, then this is a sad story of a somewhat rejected and ill-treated child who has been brought to England and effectively abandoned by one of his parents to a loving and caring relative.  If that is so, and subject to any resistance by the Secretary of State, and subject to the views of the birth parents when located, then it is clearly reasonably possible that an adoption order will be made, particularly if M himself strongly enough seeks it. 

11. One might, of course, say in different circumstances that the applicant should wait for the three years that are prescribed in section 42(5) of the Adoption and Children Act 2002.  The purpose of that is, of course, to enable a prolonged period of time to pass to see how settled the child concerned really does become.  However, there is an absolute cut off age of 19, after which an adoption order simply cannot be made.  In view of the age of M already, if the applicant did have to wait for the full three years before she could make her application, then it would be too late for an adoption order to be made. 

12. For all those reasons, I am satisfied that this is a case in which I should grant leave today, but subject to the very clear written warnings that I have mentioned and that will be recited in the formal order.  The local authority must now carry out a full investigation into the circumstances in which M is living and the strength of relationships between him and Mrs AS and her wider family here.  The Secretary of State for the Home Department must be kept fully informed at every stage of these proceedings and must specifically be sent a copy of the local authority's report when it is available.  Concurrently with that, there is a heavy duty upon Mrs AS to take active steps to locate each of the birth parents in Pakistan and to ensure that they are fully informed about, and supplied with all the documents relevant to, these proceedings and the proposed adoption application. 

13. When all of that has been done, the matter will be listed for further directions only before a judge of the High Court, sitting here in Leeds, towards the end of July 2014.  Informed by all that happens between now and then, that judge will be best placed to decide what further directions may require to be given. 

14. I will direct that a transcript of the judgment that I have given today shall be made at the expense of public funds and supplied to both parties and the Secretary of State for the Home Department.