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YP (Adoption of 18 year old) [2021] EWHC 3168 (Fam)

A case in which the court examines the criteria set out in the ACA 2002 in the context of an application for an adoption by an applicant regarding a child who turned 18 the day after the application was made, was in an unconventional relationship with the birth mother and who had, ostensibly, not been living with the subject child in the six month period prior to the application being made.


The applicant, "A", is a Swiss national living in London who applied to adopt "YP" supported by YP's, mother "R" who is also a Swiss (and Spanish) national, and lives in Switzerland with YP. A and R had been married and then divorced but subsequently, A, R and YP resumed living as a family unit in Switzerland for a period following which R and YP both regularly visited A and it was clear that A was YP's emotional father. Accordingly, the court approached A's application as being akin to application for a stepparent adoption order.

Until 2019, YP also had regular contact with his birth father "X" with whom he had never lived, but this stopped for reasons which were not known to the court at the time of the application. Although X had been served with notice of the application and, at one stage, had expressed an intention to oppose it, he made no concerted efforts to do so. Legal advice was obtained from a Swiss lawyer in relation to X which confirmed that he did not have Parental Responsibility for YP as he and R were never married and did not enter into any joint custody agreement in relation to him so X was not, therefore, automatically a respondent to the application. The same lawyer also confirmed that an adoption order, if made, would be recognised in Switzerland.

The author of the Local Authority's first Annex A, Rule 14 report, despite noting that A had played a significant and consistent paternal role in YP's life, had shown his commitment to YP in a number of ways by guidance, practical, emotional and financial support, that YP values his advice and opinions and concluding that, "…in short, A is the consistent father figure in YP's life." opposed the application due to a concern that YP would lose his connection to his birth family if the adoption order was made. That recommendation was, however, superseded by a subsequent report filed after it became clear that X was not going to engage with the proceedings, and in which it was recommended that the order should be made.

When the matter came before Mrs Justice Arbuthnot, ("The Judge"), she noted that she had to consider the following issues pertinent to the application [13-16]:

a) Whether the pre-conditions for the making of an adoption order are satisfied.

b) Whether A is the partner of R within the definition of the Adoption and Children Act 2002 ("ACA 2002").

c) Whether YP has had his "home" with A "at all times" during the six months preceding the application, it being accepted that YP was in Switzerland during this period as if not then the criterium in section 42(3) of the ACA 2002 were not met and an adoption order could not be made.

d) Finally, if the pre-conditions were met, whether it was in YP's best interests to make an adoption order.

Given the somewhat unconventional nature of the relationship between R and A, the Judge first had to consider whether A was indeed the partner of R within the meaning of section 144(4)(b). Irrespective of where each of the parties were throughout the year, it was clear that A, R and YP all deemed A and R to be in a relationship and the three considered themselves to be in a family unit. Accordingly, at [83] the Judge found that "on balance that they are living as "partners in an enduring relationship" sufficient for the Act's purposes.

As X did not have PR and it was not necessary to dispense with his consent in order to proceed with making the order, the focus then moved to the question of whether YP did indeed have his home with A in order to find the condition set out in section 42(3) of ACA 2002 met. The Judge accepted that COVID restrictions had impacted on YP's ability to spend time with A as he otherwise would have done but had constantly remained in touch during the relevant period.

At [87-96] the Judge analysis the wealth of case law dealing with this particular question before making the following observations at [110 & 111]:

I have asked myself whether the rather nebulous meaning of "home" set out above puts a strain on section 42(3) of the ACA 2002. I am fortified by the observations of past judges who have noted that no definition of home is set out in the ACA 2002. Other judges have approved a wide and flexible interpretation of "home". It is a concept which may also have different meanings in different contexts. Mr Powell contends that the European Convention on Human Rights demands an interpretation of the ACA 2002 which gives effect to the undoubted Article 8 rights of A and YP.

The original intention of the requirement in section 42(3) was to enable the local authority to observe the child and the prospective adopter together in their home. There is no suggestion from either the social workers or the Cafcass reporting officer that they have not been able to assess the relationship between A and YP. We have all become used to working effectively but remotely in the past 18 months and that is what the Annex A report writers and the Cafcass reporting officer have done.

Having done so, at [112] she concluded that she there was:

… no doubt that there is a family tie between A and YP and in my judgment, this is a situation where the court should act to enable that tie, those family rights, to be maintained. The concept of "home" should be given a wide and flexible interpretation. This is not a case where a particular geographical location is required, I do not consider that R and YP need to be living with A in one place for YP to have a home with A. I have concluded that home in this context of an 18 year old who has known the applicant almost all his life, who is bound to him emotionally and sometimes geographically and regards him as his father meets the requirement of having "had his home with the applicant…at all times during the period of six months preceding the application" even though YP was in Switzerland during this period.

The Judge found, therefore, that YP did have his home at all times with A during the preceding six month period and that, accordingly, the application for an adoption order met the criteria set out in the ACA 2002 such that, upon being satisfied that it was in YP's best interests to do so, she made the order on the basis that this will "ensure that the de facto strong and enduring family relationship between A and YP is recognised legally."

Case summary by Lucinda Wicks, Barrister, Coram Chambers

For full case, please see BAILII