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ECC v M & Ors [2008] EWHC 332 (Fam)

Judgment in care proceedings relating to possible adoption of a child by kinship carers in the USA.

This judgment by Black J followed a Provisional Draft Judgment in the case in which she had come to some conclusions about the case but required further assistance on the law and the practicalities of the proposed placement of the child (S) in the US. These difficulties arose from the proposed plan to allow a child to be adopted by the sister, who lives in the US, of the natural father. Complicating factors were i) the need to consider contact between S and her half-sister (R) who was to be adopted in the UK; ii) the mother’s opposition to the proposed adoption and iii) the possible disruption caused by contact with the mother.

Black J therefore reviews the law on adoption by prospective parents from overseas, the practical issues arising from migration to the US and balances the need for contact for mother, father and half-sister. In particular she considered the apparent need under s84 of the 2002 Act for the child to spend 10 weeks with the prospective parents at their home for the purposes of assessment. She concludes that: i) it in S’s best interests to be adopted by the prospective parents in the US; ii) that proposals for contact between the half-sister’s are more likely to work in this arrangement than if S was adopted by strangers in the UK; iii) it was obvious that the requirements of s84 could not be met so instead the child would be placed for adoption under paragraph 19, schedule 2 of the Children Act 1989; iv) the immigration requirements for an “orphan petition” to allow the child into the US, cannot be met under the 2002 Act as there is no equivalent of a freeing order which ceases all parental involvement. Black J therefore states that the best she can do is make the care order and write a statement to the effect that a freeing order would have been made under the old law.

Neutral Citation Number: [2008] EWHC 332 (Fam)
Case No: CM05C05082

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/02/2008

Before :

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Between :

E C C (Applicant)

- and - 

M and Others (Respondents)
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Mr Phillip Conrath (instructed by ECC) for the Applicant
Mr Nicholas Elcombe (instructed by Ellisons) for the Respondent
Ms Camille Habboo (instructed by Eskinazi & Co) for the Third Respondent
Mr Peter Horrocks (instructed by Sparling Benham & Brough) for the Fourth & Fifth Respondents
Miss Deirdre Fottrell (instructed by Ridley & Hall) for the Sixth Respondents

Hearing dates: 19th - 23rd November 2007, 10th December 2007 & 21st February 2008
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Black J:
1. These care proceedings concern R, b. 30 September 1995, aged 12 and S, b. 19 June 2003, aged 4.

2. The proceedings have taken an unusual procedural course. After the oral hearing ended in November 2007, I prepared a “Draft Provisional Judgment”. In this, I set out my provisional conclusions about the case but indicated that I required further assistance before I could come to a final view. The matters that were troubling me were partly to do with the law, upon which I invited further submissions, and partly to do with the practicalities of the proposed placement of S in the United States of America. These matters have subsequently received attention and this judgment reflects the further legal submissions I have received and such information as has been provided to me about the position of S’s family in the States. It does not purport to deal with any other changes that there may have been in the situation in the period since the oral hearing and I have, rightly, not been given updating information about recent events in S and R’s daily life. The Draft Provisional Judgment (which was circulated to all parties in writing) should be preserved on the court file in case it should be necessary to refer to it at any stage in the future.

3. R’s father is SC. He is aware of the proceedings relating to R but has chosen to play no part in them.

4. S’s father is F. Although he has never been married to S’s mother, he has parental responsibility for S by virtue of an order made by the county court in April 2006. He has been having contact with S and is concerned about her welfare. He has attended the hearing when his work permitted and has been represented throughout. He gave evidence and was cross examined and his counsel cross examined witnesses on his behalf and made submissions.

5. The mother of both children is M. She has not attended the care hearing herself. In her latest statement, she gives the reason for this as fear of F but I was not asked to make any alternative arrangements for the hearing so that she could participate directly without coming into contact with him, for example by video link or with screens.  I have received her written evidence and counsel has appeared for her with full instructions. By this means, she has participated fully in the proceedings apart from giving evidence herself and all the points she wished to raise have been aired with the witnesses in cross examination and in argument.

6. M has another child, A (b. 12 October 2000, aged 7). A has a different father. She lives with her paternal relatives. She is relevant to these proceedings only in so far as it is necessary to make plans to ensure that the relationship between her and R and S is preserved as far as possible.

7. I should explain at the outset of this judgment that I intend to describe certain concepts of English law rather more fully in it than would normally be necessary or desirable. The reason for this is that it is contemplated that it may be necessary to provide a copy of the judgment to the American immigration authorities in connection with an application to them for permission for S to go to live with paternal relatives in Florida.

8. It may be helpful for those reading this in the United States if I commence with an explanation of the legal context of the proceedings. I hope I will be forgiven if, in the course of this explanation, I paraphrase for the sake of clarity at the expense of exactness.

9. Care proceedings are the method by which the state (specifically the social services department of whichever local authority is relevant for the family in question) intervenes to protect children when the care they are receiving or are likely to receive from their parents is inadequate. Care proceedings can result in a number of different orders. The principal protective orders are a care order (which imposes a duty on the local authority designated in the order to receive the child into its care and to keep him in its care whilst the order remains in force) and a supervision order (which imposes a duty on the local authority to provide a supervisor to advise, assist and befriend the child, who generally remains living at home). Before either order can be made, the local authority has to satisfy the court that what has become known as “the threshold” for state intervention in the family’s life has been crossed. Thus, a court can only make a care or supervision order if it is satisfied that the child has suffered significant harm or is likely to suffer significant harm by virtue of inadequacies in parental care. Once a care order is in force, the local authority designated in that order has parental responsibility for the child. The parents do not lose their parental responsibility but (except in certain limited respects) where the local authority is satisfied that it is necessary to safeguard or promote the child’s welfare, it has the power to determine the extent to which the parents may meet their parental responsibility. Putting it another way, it is the local authority and not the parents which directs the child’s life. A care order remains in force until the child’s 18th birthday unless it is discharged by an earlier court order. A discharge order can be applied for by anyone with parental responsibility (notably the parents), the child or the local authority designated in the care order. The person who makes the application has to show that the child’s welfare requires the discharge of the care order.

10. Adoption is the only order in English law that permanently and irrevocably terminates the relationship between parent and child. With the possible exception of an order under s 84 Adoption and Children Act 2002, to which I shall return later, a care order is the next most draconian order in the hierarchy beneath adoption and associated orders within the adoption process. When a local authority seeks a care order, it must put forward its care plan for the child concerned. Not infrequently, a local authority proposes to the court for approval a plan involving the adoption of the child. The reason for this proposal is usually that the inability of the parents to meet the needs of the child is likely to be permanent or to endure for such a period that finding a permanent alternative family is the only solution for the child. The care order is the precursor, in these cases, to the commencement of the adoption process in the English courts. Before the recent changes in the law, a local authority which was proposing a care plan of adoption would not infrequently apply (either at the time of the care proceedings or afterwards) for a freeing order which terminated the parental responsibility of the parents and left the child free to be adopted once a suitable family could be found. Freeing orders are no longer available since the advent of the Adoption and Children Act 2002. Where the parents are not in agreement with the proposed adoption, the local authority now seeks a “placement order”. This is an order authorising the local authority to place the child for adoption with adopters chosen by it. It does not terminate the parental responsibility of the parents as a freeing order used to do, although the local authority can restrict their use of their parental responsibility as it can with a care order. An application for an adoption order normally follows the making of a placement order and it is the adoption order that finally brings the parents’ parental responsibility to an end.  

The facts of this case and my conclusions as to what would be in the best interests of the children if the law permits
11. R and S have been in foster care since May 2005. Care proceedings were commenced in July 2005. The parents concede that the threshold for state intervention in the family has been crossed. The basis for this can be found set out in a document which was approved by the court by an order made on 27 April 2006. It was established that at the time the care proceedings were commenced the children were likely to suffer significant emotional and physical harm and that the likelihood of harm was attributable to the care likely to be given to the children if a care or supervision order were not made not being what it would be reasonable to expect a parent to give to them. This conclusion was based on a number of features. The children had been exposed to incidents of domestic violence between M and F and between M and another partner. They had also been exposed to M’s alcohol misuse and chaotic lifestyle and they had been neglected. M had been unable to co operate with the child protection plan devised by social services and her mental instability had impaired her ability to care for the children. The details are set out in the threshold document.

12. Assessments of M’s ability to provide consistent and nurturing parenting for R and S have been carried out. They have concluded that there is no evidence of improvement in her abilities at present nor any evidence that they would be likely to improve within a timescale that would enable to her to care for the children.

i) The parenting assessment of M carried out in February 2006 by a social worker at the Mulberry Tree Family Centre noted the extensive history of concerns in relation to M’s parenting of R and S. M struggled to engage consistently with that assessment and failed to attend a significant number of sessions. She found it difficult to reflect on her past experiences and showed little insight and understanding in relation to her role in and responsibility for the harm the children suffered in her care. She mainly attributed blame for the past difficulties to other adults and agencies. The assessment concluded that there was little evidence to suggest that previous patterns would not recur if M resumed care of her children. It was considered that the likelihood of abuse recurring was very high and that it was not in the children’s best interests for them to return to M’s care and alternative placements should be found.

ii) Dr Padamsee, a child and adolescent psychiatrist considering the matter in August 2006, also considered that M could not function as a full time carer for S or R whose best interests required that they be placed with alternative carers on a long term basis. He remains of that view to the present day.

iii) Dr O’Flynn, the consultant psychiatrist who has assessed M, says in his most recent report dated 5 September 2007 that he remains of the opinion he formed in 2006 that M “demonstrates features of a personality disorder of the emotionally unstable (borderline type)”. The updated medical records indicated to him that at various periods since his assessment in January 2006, M “has developed features suggestive of alcohol dependence and that she has intermittently engaged with services to address this…. Furthermore, there is direct evidence that she developed an injectable opiate habit and may well have also been on opiates.”  He also reports that there is no evidence that M has sought to access formal psychological help which he considers is probably because she has no acknowledgment of any personal psychological problems. He points out that there is a consistent pattern of her not engaging in any meaningful way with services.

All of this is a very bleak picture and, given the fact that neither child’s father is in a position to care for her either for reasons I shall explain shortly,  amply justifies the conclusion of social services that alternative long term homes have got to be found for R and S.

13. All parties are in agreement that there should be a care order in relation to each child. Their broad positions are as follows:

i) Neither child’s father raises an issue of any substance in relation to the care plan proposed by the LA and the Guardian (GAL) also supports the main thrust of the LA’s proposals.

ii) M accepts that she cannot care for either girl herself. She is largely content with the LA’s proposals in relation to R although there is a small issue to resolve in relation to her contact with R. What she does oppose is the care plan for S which is to place her permanently with F’s sister in the USA. I must determine whether or not that is in S’s best interests and whether, given the law of both England and the USA, it is likely to be feasible.

14. I now intend to deal with the detail in relation to each of the girls, starting with R who everyone hopes will be able to remain living with her present foster parents, to whom she went in May 2007. Such remaining issues as there are in relation to R are to do with contact.

15. R’s father has had very little contact with her, has shown no real interest in her welfare and is not offering to care for her. He last saw R in September 2006. He telephoned the social worker in September 2007 asking for contact on R’s birthday and was advised to write to R first because of the length of time since he last saw her. He did not send a letter and has not contacted the social worker since. The LA now propose that there should be face to face contact between R and her father once a year but only if her father communicates in writing with her at least twice a year, on her birthday and at Christmas. I agree that this proposal is in R’s best interests. The LA originally invited the court to make a s 34(4) order in relation to R’s father but do not press this, given that it is clear that R would like to see him and enjoys her contact with him when it takes place. In the circumstances, a s 34(4) order seems unnecessary, particularly given Mr C’s inertia. The problem seems to be galvanising him into seeing R rather than managing over-enthusiastic demands to do so. Accordingly, there will simply be an order for contact on the condition that the LA propose.

16. Contact with M, or the lack of it, has the capacity significantly to disrupt R. She last saw M in May 2007. The supervisor thought the contact was fairly positive but afterwards R said she did not enjoy it and that she was very angry with her mother. In July she said to her foster carer that she did not want to see her mother. Contacts were arranged for late July and for August but M did not attend either of them, explaining her non-attendance as being related to the travel warrant not arriving in time on the July occasion (there was a postal strike) and on the August occasion, to the fact that she only picked up her post after the contact date. Michelle Joyner, the social worker, says that R presents as very angry and frustrated towards M when M does not attend contact and her behaviour in placement and in school becomes more difficult. The guardian told me that it is easy to underestimate the effect on R when she is told that her mother is coming for contact and then she does not turn up. She says this has caused enormous problems for the present foster parents and she is worried that M’s contact has the ability to destabilise the placement. That would be disastrous given that R has already had over 20 placements including one in a children’s home. Dr Padamsee explained in his first report how irregular attendance at contact by M undermines the security of R’s placement by generating anxieties in R about the reasons why M has not come. He was sufficiently concerned about this when he made his most recent report to recommend that there should be letter contact only, with consideration being given to face to face contact only once M can demonstrate she is able to commit herself to maintaining regular contact, which he considered would only be demonstrated if M sought counselling/psychological help for her difficulties and regularly attended a programme such as MEEDAS for at least 6-9 months. When he gave oral evidence during this hearing, he stressed that the worst scenario would be for contact to be established and for M then to drop out which would be very traumatic for R but he was prepared to support the LA’s proposal of face to face contact on a conditional basis.

17. The LA proposal, supported by the GAL, is that M should only see R a maximum of three times a year and that these contacts should be supervised and should only take place if 6 conditions are satisfied . The conditions proposed are these:

i) R wishes to see M

ii) R’s therapist (if/when she has one) agrees that it is in her best interests to do so

iii) M ensures that the LA is aware at all times of her current address and telephone number

iv) M is consistent in sending R an appropriate written communication once a month

v) M telephones the LA the day before any arranged contact to confirm that she will be attending

vi) M arrives for contact one hour prior to the appointed time, stable in mood and not under the influence of alcohol or drugs.

18. M agrees that she has been inconsistent in her contact with R and she agrees to contact now taking place on the basis proposed by the LA, and in particular to these six conditions. She would like contact to be set up for fixed dates once it starts, and she would like travel warrants to be with her at least 7 days before the date fixed. This seems entirely reasonable and should be achievable if M keeps the LA reliably informed of where she is living and how she can be contacted.

19. In the light of all the evidence, I endorse the plan for contact on the basis that the LA proposes (and only on that basis) as likely to be in R’s best interests. Telephone contact should not take place because it cannot be monitored and is likely to be unsettling for R.

20. It is my view that in order to limit the damage and disruption to R, there needs to be a limit to the number of attempts that M has to satisfy the conditions that depend upon her. It seems to me that if M twice fails to satisfy the conditions which are dependent on her when the LA has established that R wants contact and her therapist (if she has one) considers it is in her best interests and have made an offer of contact, the LA should be entitled to say that no further contact will be arranged.

21. There is a debate between the parties as to how that should be reflected in a court order. The LA seeks a s 34(4) authorisation so that they can refuse to allow contact between M and R if circumstances require it. M opposes the granting of a generalised authorisation under s 34(4) because it would entitle the LA to stop contact even if the six conditions were satisfied. It is submitted on her behalf that a s 34(4) order is unnecessary and that it would be better to make a more positive order (under s 34(2)) providing that she has contact on the agreed conditions. It seems to me that the argument over this issue is largely semantic. I intend to make the order that will most readily express the intention of the court. S 34(7) provides that “[a]n order under this section may impose such conditions as the court considers appropriate.” This means that conditions can be applied either to an order under s 34(2) granting M contact or to a s 34(4) order authorising the LA to refuse contact. The intention of the court can perhaps be most appropriately reflected in a draft that includes aspects of both s 34(2) and s 34(4). In broad terms, therefore, the order should initially follow roughly the draft prepared by counsel for the GAL, providing for M to have contact on only 3 occasions per annum and only in accordance with the listed stipulations (the six conditions). It should then include a provision that in the event that M twice fails to satisfy the conditions that are dependent on her with the result that a proposed contact does not take place, the LA shall be entitled to refuse to allow M further contact with R.

22. I have heard some evidence on the subject of therapy for R. She has been described by Dr Padamsee as a “troubled and troublesome girl”. She has serious difficulties forming relationships with her peers. Whilst the present foster placement appears to have a lot to offer her, Dr Padamsee is quite clear that she is in urgent need of therapeutic help. If she does not receive it now, without further delay, she is going to have a turbulent adolescence. Her difficulties are likely to be compounded by S being placed in the United States or otherwise being found a permanent family whilst she, R, remains in limbo. She also needs a prompt assessment to see whether she has ADHD. If she has, it needs to be treated. That will not mean a cure for her disturbance but is necessary so that she can make use of whatever therapeutic help can be obtained for her.

23. I am very concerned, as is the GAL, that R has not received some sort of psychiatric/psychological help before now. Dr Padamsee has been stressing the urgency of obtaining it for her for a considerable time, starting with his report of August 2006. I appreciate that it is not infrequently said that a child cannot be helped until he or she is in a stable placement. This is the point of view put forward in the LA’s care plan for R. However, given that Dr Padamsee, a consultant child and adolescent psychiatrist, has been recommending assessment and therapy in R’s case for a long time, an appropriate referral should have been made well before the very recent referral. All that has been offered by CFCS in response to that is a consultation in January 2008 for the professionals involved in the case with no promise that therapy will follow. This is not enough to meet R’s needs and it seems to me that unless social services, with or without Dr Padamsee’s help, can secure an urgent ADHD assessment plus therapy for R, they should be investigating what services are available to meet her needs privately. I was relieved that the social work team manager, Mrs Rowe, assured me in her oral evidence that the LA is prepared to pay for therapy if necessary and will keep in touch with Dr Padamsee about what her requirements are.

24. It is important that proper arrangements are made to continue contact between R and S who presently see each other once a month. I appreciate the adverse impact that S’s permanent placement will have on R. At first sight, one assumes that this would be worst if S were to be placed in the USA. However, the proposal of the LA is for R to travel, at the LA’s expense, to see S in the USA once a year for at least a week as well as exchanging frequent letters and e-mails and the Hs are content with this. When one considers it carefully, it is apparent that this may well be more effective contact than could be arranged if S were to be adopted by strangers in the UK. The LA also proposes continuing contact for R with her maternal grandfather and intend to continue to pursue the possibility of contact with A.

25. In relation to S, there are issues of both placement and contact.

26. F has contact with her and he is concerned about her welfare. However, he concedes that he is not in a position to offer her a home either at present or in the sufficiently near future to meet her needs. This is realistic. When F was assessed in 2006, although the assessors were impressed by his commitment to S and desire to continue to play a role in her life through “access of some sort”, they had significant reservations about whether he had the ability and skills to provide good enough parenting for her. They listed a number of concerns about his parenting ability in their report which they considered indicated an inability to care for S then or for a long time in the future. F was asking at the time of the assessment for his extended family to be assessed as carers for S and he now fully supports the LA’s plan to place her permanently with his sister and her husband (Mr and Mrs MH) in the United States if that can be achieved. He has indicated that he consents to all his parental rights and obligations in respect of S being terminated permanently and unconditionally upon placement. He acknowledges that Mr and Mrs H will be S’s parents and have all legal control in relation to her and he accepts that once S has moved to live with them, her contact with him will be at their discretion. He is aware that the LA is anxious that S should be able to settle with her new family and make strong and lasting attachments to her new parents and therefore recommends that there should be face to face contact no more than twice a year (depending on F’s ability to travel to America), letters a maximum of six times a year and telephone calls no more than once a month. F does hope to travel to the USA but twice a year is the maximum he would be able to arrange. He would stay at his parents’ house and hope to see S as much as he can without disrupting her. Until S moves abroad, he would like to see her more frequently than this. Presently he has contact at a contact centre once a fortnight. He would like his visits to be rather more natural and to take place on an unsupervised basis outside the centre. There seems to be agreement as to this. F’s visits to see S have become very important to her. He attends regularly, brings her a suitable educational present and she enjoys seeing him.  

M’s objections to the placement with the Hs
27. M does not agree that it would be in S’s best interests to be placed in the United States with the Hs. She does not believe that either she or S’s siblings would see her again if she were to go abroad and she does not believe that being removed from her biological family in England is in S’s best interests. Her proposal is that S should be placed for adoption with strangers in England. She would like some form of continuing contact with her.

28. M’s opposition to the American plan is based on a number of factors. She questions the sufficiency of the LA’s proposals for direct contact between S and her half sisters. She is also concerned about the placement with the Hs. She does not know them herself. She sent a letter and photograph of S to them once and received no response. In addition, she is anxious because, in the past, she says there was an occasion when S’s paternal grandmother needed help with caring for F’s sister’s child and the Hs apparently did not step in. Furthermore, she is worried that F will move over to the States and take over caring for S in a second property which is owned by the Hs. She alleges that F has told her that as soon as S is placed in America, he will follow her out there and at some point S will be living with him. 

29. I will deal with each of M’s objections in more detail shortly. She is the only party who opposes the placement. The other parties agree that it is in S’s best interests to be placed with the Hs and I too am entirely satisfied that this would be very much to her advantage if it can be achieved. It seems to me that the form of S’s residence with the Hs is much less important than the fact of it. Dr Padamsee said that S would be more secure if she were to be adopted by them but that he would support a plan for S to go to live with the Hs on a long term fostering basis if adoption was not possible. Social services and the GAL are in agreement that a long term foster placement would be acceptable although I think both hope that ultimately adoption will be possible.

30. Although I have given M’s objections to the plan for placement with the Hs careful consideration, I have not found any substance in them. I will take each in turn.

a) Suitability of the Hs
31. The Hs have been assessed in the States by Michelle Joyner and Joanna King from the local authority who recommended in October 2006 that they should be approved as carers for S. Subsequently, an international adoptive home study has been carried out by an American Organisation called Adoption by Shepherd Care, Inc. This concluded:

“S and D H have the emotional, mental and spiritual maturity to effectively parent children. They display appropriate coping skills and understand the needs of an adopted child. They have approached their adoption plans with great enthusiasm and will provide their adopted child with a loving, nurturing and stable home.

Adoption by Shepherd Care, Inc. strongly recommends and approves S and DH for adoptive parenting.”

The GAL has also met the Hs in November 2006.  S has met them and has had the benefit of a holiday with them at their home in Florida for 3 ½ weeks during the summer of 2007. All those present in court during the hearing had the benefit of hearing the Hs give evidence over the video-link during the hearing.

32. I have never had any doubt that the Hs genuinely wanted to offer S a home and were in a position to meet her needs by welcoming her into a stable, loving and nurturing household and also in other respects, notably ethnicity and culture and contact with her biological family. At the time of the oral hearing before me, they had a number of significant anxieties about the financial impact on their family of S coming to live with them and they were properly concerned to ensure they would be able to get help with/for her if she was difficult following placement with them. I set out their concerns about therapy in paragraph 38 of my draft provisional judgment and their financial concerns at paragraphs 39 to 42. I indicated that the LA and the Hs should discuss and, where possible, resolve these issues so that the Hs could consider, in the light of the best proposals that the LA could make, whether they remained committed to adopting S. The final discussions took place during a telephone conference on 28 January 2008. At the outset of the conference, Mr Priestly (the solicitor who has been acting pro bono for the Hs) indicated, as the minutes record, that “Mrs H wants S to join their family. Their finances are stretched but will take S whatever.” Whilst the minutes show that the LA was not able to offer all the financial and other support that the Hs would have wanted in an ideal world, with compromises on both sides a position was reached which would amount to a workable arrangement for S to live long term with them.

b) Loss of contact with M and half siblings
33. The LA’s plan is for M to have indirect letterbox contact with S a maximum of six times a year. M would like more extensive contact than this. She last saw S face to face in May 2007. She says that S said she wanted to see M again. M accepts that if S goes to live in America, she (M) is highly unlikely to be able to afford to travel there to see her and she asks for telephone contact three times a year plus reciprocal written communications once a month. If S is placed for adoption in England, she would like it to be an open adoption so that S could see her half siblings and also have direct contact with M on the same conditions as the LA propose in relation to R.

34. Whatever M wants, it is clear that there will need to be severe limitations on her contact with S whether she is placed in this country or abroad. There has been a gap in contact for some time now and the LA does not consider it in S’s best interests to reinstate contact prior to her going to live in the USA. Their plan is for contact between M and S to be indirect only, a maximum of 6 times a year. 

35. When Dr Padamsee observed contact between M and S for his August 2006 report, he thought that there was a warm, affectionate relationship and that S enjoyed being in M’s company but engaged with her as if she were an aunt rather than a mother which was understandable given S’s experiences whilst in her M’s care and the fact that she was removed into foster care at 16 months old. In his recent report, he takes account of the opinion of Dr O’Flynn in his report of September 2007 about M’s personality disorder and drug habits. He says that in view of the difficulties described by Dr O’Flynn and M’s inability to maintain regular contact with her children, there should not be direct contact between M and either of the children at this stage because irregular contact by her is likely to have an adverse impact on the emotional development of the children. He recommends that contact should be by letter only, monitored by the LA. In oral evidence, he pointed out, rightly, that if S is adopted by the Hs, contact will be a matter for them but he recommended that there should not be telephone contact at present although they could consider in at least 6 months time (and more probably 9 to 12 months time) once she had settled down whether to progress to it.

36. Given the potential for contact with M to destabilise any new placement of S, whether it be with the Hs or another family, I consider that a cautious approach must be taken and I agree with the LA’s proposal that M’s contact should be confined to letter box contact. It seems to me likely that this will be in S’s best interests in the initial stages of either a placement in the USA or an adoption in this country. I am asked to make an order under s 34(4) in relation to M’s contact with S and I would be prepared to do so subject, of course, to the preservation of the indirect contact that is to be permitted. The alternative would be to make an order for contact between M and S, limited to a maximum of 6 written communications from M to S each year. I do not intend that there should be any obligation on S or her carers to reply although it will obviously help M to communicate in a more meaningful way if she has a photograph of S and/or other information about her from time to time.  

37. As for contact with S’s siblings, I am satisfied that efforts will be made to keep S and R in touch with each other and I have already identified that S’s contact with R may well turn out to be more effective and enjoyable if it takes the form of a week long annual holiday in the USA than if it had to be arranged in the context of a stranger adoption in the UK. In so far as M seeks to argue that distress and disturbance caused to R by the plans for S is a ground for deciding against placement of S abroad, it is S’s best interests that I must consider when evaluating the care plan for her and not those of R, sympathetic as I may be to her situation. In any event, I am afraid that, as Dr Padamsee says, R is going to be upset by S’s permanent placement with a family whether that is in the UK or not. As for Amber, she does not remember S much at all and S, as the younger child, must have even less recollection of Amber. Loss of contact with her must be seen in that context. The GAL says of it that she does not accept that Amber is a significant person to S although as she is her half sister, S should certainly have some information about her and some help contacting her in later life if she wishes.

c) The risk of F moving to the USA/taking over care of S
38. F was quite clear in his oral evidence that he does not intend to move to live in the United States. He has tried life there and it is not to his liking and he has made his home here. I accept his evidence about that. The possibility that he might move into the second property owned by the Hs was explored with him and with them but the Hs need the income from that property to service the mortgage on it and, when they put the rent up, to generate extra income for themselves and there was no evidence that they intend to let F live there or that he wishes to do so. Nor is there any evidence that either the Hs or F intend that he should ultimately take over care of S if she is initially entrusted to them. I was quite convinced by the assurances of both sides that the intention was that the Hs would act as her parents. Mrs H left me in no doubt that it would not be F who would be taking decisions about S’s life but herself and her husband and F accepts this.

Issues of support for the placement which were raised during the hearing
39. The question of therapy for S if she is placed in the USA has been considered during the hearing. The Hs raise issues about her behaviour when she was with them on holiday in the summer and it seems inevitable that there will be issues whilst she gets used to living with them. The LA acknowledges that the USA will be a new and culturally strange environment. Dr Padamsee considered that it will not be easy for her to move there and to separate from M, F and R and thought she would benefit from therapy and that it would be a good idea to have counselling sessions at least for 6 months whilst she is settling down. He has not seen S for some time so cannot give a definitive view but considered it “very likely” that therapy would be necessary. He felt that therapy would also help the H family and particularly the Hs’ own children. He pointed out that the worst thing for S would be for it all to break down which would be a “disaster”. The GAL agreed with Dr Padamsee’s view although she considered that one cannot be prescriptive about therapy and in particular whether it would be needed early on in the placement. She simply asked that the door should not be closed to immediate therapy if that turned out to be needed. The LA considers that therapy immediately on placement with a permanent family tends to be unhelpful to the process of the child building a relationship with the family and they would prefer to rely upon support being delivered by the Shepherd Care organisation. However, fortunately, they do not close the door to the possibility of therapy for S. They will keep in touch with Shepherd Care and directly with the Hs. They undertake to fund whatever Shepherd Care feel is needed (although they cannot promise a life time commitment to therapy, limiting their offer to the settling in period) and if the Hs raise problems with them directly, they will liaise with Shepherd Care about them.

40. I am sure it is wise to make provision for therapy for S. I entirely agree with Dr Padamsee that it would be a disaster if S were to be placed in the USA and the placement then break down. If the right therapy delivered at the right time could prevent this, plainly it would be very much in S’s best interests and money well spent.

41. The Hs’ concern about the limited kinship allowance that the LA can offer has been addressed by an agreement that it would not prevent S being placed if Mrs H were to work part time, as she intends to do by obtaining employment in a school/schools. The LA would prefer Mrs H to be at home for 6 months after the placement but consider that she could properly work part time after S has settled in.

42. The Hs have accepted that the LA cannot fund health insurance for S and have a policy which already covers her from the time she becomes a member of the family. They seem to have abandoned the idea of private education. Payment of fees incurred in the USA for Shepherd Care and for an attorney to deal with the adoption application in the USA will be met directly by the LA.

The legal framework here and in the USA
43. I indicated that the previous section of this judgment set out my conclusions about what would be in the best interests of the children “if the law permits”. The position in relation to R is quite straightforward in that regard. The same is not true of the plan to place S in the USA. This case has revealed how very difficult it is, since the demise of the freeing order, to arrange for a child to live with his or her relatives in the United States of America, even when it is quite clearly in the child’s best interests to do so. If no way can be found to achieve this, whether by way of adoption by the Hs or by an arrangement for S to live with them in a family placement, the result for S will be that instead of being able to remain within her biological family, she will have to be placed with strangers for adoption. She would have to wait for a suitable family to be found who reflect her mixed racial origin and would like to adopt a little girl who, at best, will be going on 5 years old and who the Hs found, during the summer, to be impulsive and challenging. She would lose all the benefits that come with real day to day contact with one’s own roots. That would be a most regrettable triumph of bureaucracy and state control over humanity. 

44. Until the hearing began, everyone’s concentration was upon the American requirements for S to be allowed to enter the country to live with the Hs. As has become clear during the hearing, the English law in relation to removing her from this country to the United States is also extremely problematic. I propose to deal with the English position first, looking at the options available to permit S to go abroad, and then to consider which, if any, of these is likely to satisfy the immigration requirements of the USA.

The English law
45. I deal first with the English law which governs the adoption of an English child by foreign adopters.

46. There are at least two main options where the intention is for a child is to be adopted by people living abroad. The first is for the child to be adopted in this country and then to go with its new parents to live in their home country. The second is for the child to be adopted under the law of the new home country.

47. An insuperable obstacle in the way of adoption in this country in this case is the condition of domicile or residence. Under s 49 Adoption and Children Act 2002, one of the adopting couple must be domiciled in a part of the British Islands or both of the couple must have been habitually resident in a part of the British Islands for a period of not less than one year ending with the application. The Hs cannot satisfy this condition and it is unnecessary therefore to go further in considering the possibility of them adopting S under the law of England and Wales.  Accordingly I turn to the English controls on S being adopted abroad.

48. S 85 Adoption and Children Act 2002 restricts the removal of children from the UK for the purpose of adoption. It provides:

“s 85 (1) A child who –
(a) is a Commonwealth citizen, or
(b) is habitually resident in the United Kingdom,
must not be removed from the United Kingdom to a place outside the British Islands for the purpose of adoption unless the condition in subsection (2) is met.
(2) The condition is that –
(a) the prospective adopters have parental responsibility for the child by virtue of an order under section 84, or
(b) [Scotland and Northern Ireland]”
49. Local authorities are not excluded from the provisions of s 85(1). Removal of a child in contravention of s 85(1) is an offence and removing a child from the United Kingdom includes arranging for a child to be removed.

50. An order under s 84 is an order giving parental responsibility for the child to persons who the court is satisfied intend to adopt a child under the law of a country or territory outside the British Islands.  A S.84 order may not be made unless the requirements prescribed by regulations (The Adoptions with a Foreign Element Regulations 2005) are satisfied. S 84(4) provides:

“(4) An application for an order under this section may not be made unless at all times during the preceding ten weeks the child’s home was with the applicant or, in the case of an application by two people, both of them.”

51. A s 84 order operates to extinguish the parental responsibility of anyone other than the prospective adopters as well as any order under the Children Act 1989 (including a care order).

52. S 84 and its associated regulations appear to be giving rise to repeated problems in cases where it is proposed that there should be an adoption of a child by relatives abroad. In July 2006, I gave a judgment in another case, which does not appear to have been reported (London Borough of H v M and A [2006] EWHC 1907 (Fam)), dealing with the placement of a child in Germany, in which it was necessary to consider issues similar to those that arise here, although given that the child was to be placed within the EC, that case was mercifully without the complications to which the immigration laws of the United States give rise.  

53. The difficulty with s 84 is that it appears to impose a requirement on foreign prospective adopters to come and live with the child in this country for ten weeks. This is not apparent from the statute. Reading s 84(4), one could be forgiven for thinking that it would be sufficient if the child had his or her home with the applicants in their country of residence. However, Regulation 11 of The Adoptions with a Foreign Element Regulations 2005 provides that certain of the adoption provisions of the 2002 Act apply to orders under s 84 as well. Amongst these is s 42(7). This provides:

“(7) An adoption order may not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant or, in the case of an application by a couple, both of them together in the home environment have been given –
(a) where the child was placed for adoption with the applicant or applicants by an adoption agency, to that agency,
(b) in any other case, to the local authority within whose area the home is.”

54. My attention has not been invited to any authority expressly on s 42(7). Similar provisions of the old law were considered in Re Y (Minors)(Adoption; Jurisdiction) [1986] 1 FLR 152 by Sheldon J and in Re SL (Adoption: Home in Jurisdiction) [2004] EWHC 1283 (Fam) by Munby J. 

55. In Re SL Munby J had to consider s 13 Adoption Act 1976. The relevant subsections were these:

“(2)….an adoption order shall not be made unless the child is at least 12 months old and at all times during the preceding 12 months had his home with the applicants or one of them.
(3) An adoption order shall not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant…in the home environment have been afforded-
(b) ….to the local authority within whose area the home is.”

56. A slightly modified version of s 13(2) is reflected, in s 84 terms, in s 84(4) Adoption and Children Act 2002. S 13(3) is reflected in s 42(7) as applied to s 84 cases.

57. Munby J referred in his judgment to the determination of Sheldon J in Re Y that in the corresponding provisions of the Children Act 1975 which then prevailed, the reference to a local authority must indicate a local authority in England or Wales. He thought Sheldon J was plainly right about that and concluded that in s 13, local authority had the same meaning. I agree with both of them and consider that the same is also true of the reference in s 42(7) to the local authority. Where s 42(7)(b) applies therefore (i.e. in any case where the child has not been placed for adoption by an adoption agency), the adopters and the child will have to have a home in the area of an English/Welsh local authority in order that they can afford sufficient opportunities to that local authority to see them in the home environment together. This provision was enough to cause all parties to abandon further thought in this case of a s 84 order. Whilst I considered that they may well be right in that, I requested in my Draft Provisional Judgement that there be a little further research by counsel and some further submissions before a line was finally drawn under this possibility.

58. Munby J decided in Re SL that the home referred to in the requirement for 10 weeks residence need not be the same as the home referred to in the provision requiring opportunities for “inspection” and it seems to me that his reasoning is as valid in relation to the new law under s 84 as it was in relation to the old s 13. Accordingly, there is no statutory requirement for the adopters and the child to have a home together in the local authority’s area for as much as 10 weeks. In these circumstances, I wanted to explore the possibility that the 10 week residence qualification could be satisfied by S living with the Hs predominantly in the USA but with a temporary “home” being set up in this country for such part of that 10 weeks as gave the LA sufficient opportunities to see the Hs and S together in the home environment.

59. Counsel have been good enough to research this point for me. In the course of so doing, counsel for the guardian has uncovered a decision of McFarlane J (H County Council v B [2005] EWHC 3437 (Fam)) in which, contrary to the decision of Sheldon J in Re Y and of Munby J in Re SL, McFarlane J, who makes no mention of those two authorities and may not have been referred to them, proceeded on the basis that the ten week period has to be spent with the potential applicant for adoption within England and Wales. In view of my conclusions about what is required to establish a home, even on a temporary basis, and in the light of the practical difficulties that the Hs would have in coming to stay in this country for any period of time at all, it is unnecessary (and no doubt undesirable) for me to resolve such conflict as there is between these authorities.

60. There is no definition of “home” within the Adoption and Children Act 2002 or the Children Act 1989 so counsel have had to look further afield for indications of what it means in the present context.

61. Although mostly in favour of the placement with the Hs, none of the parties seek to persuade me that it would be possible to satisfy the requirements of the legislation by a short period of temporary residence. Cases have been identified in which prospective adopters have been able to come to live in England for at least the whole 10 weeks and it has been accepted by other judges of the Family Division that they qualified for an order under s 84. One such case is a decision of Hogg J entitled Re M where the prospective adopter had been temporarily accommodated by the local authority in a flat in their area. Another is the decision of McFarlane J in Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814. They have not, however, found any authority dealing directly with what a home is under the 2002 Act.

62. Counsel for the LA says that he had failed to find any further useful authorities on the question of what would constitute a home or home environment for this purpose. He helpfully invites attention to Sheldon J’s comments on the subject in Re Y (supra). In Re Y, the prospective adopters lived in an apartment in Hong Kong. The wife’s children were being educated in boarding schools in the United Kingdom. They went back to Hong Kong for the main school holidays and spent half terms and exeats at the house of the husband’s adult daughter in England. The applicants visited England occasionally and when they did, they based themselves at that property. Sheldon J found that in these circumstances, they did not have a home in England and the English court had no jurisdiction to make an adoption order. He said this on the concept of a “home”:

“The further question remains, therefore, of what is to be regarded as a ‘home’ for these purposes. It is a question to which little or no assistance in finding an answer is provided by ss. 107(1) and 87(3). Nor, in my view, unless it is to be given, for any particular purpose, some arbitrary statutory meaning, is the concept capable of precise definition. Nor, too, in my opinion, should such a definition be attempted beyond indicating the principal features that a ‘home’ may be expected to embody. Subject to that, in my judgment, it must be a question of fact in any particular case whether or not the applicant has a ‘home’ here within the meaning of the 1975 Act.

   ‘Home’ is defined thus in the Shorter Oxford English Dictionary:
‘A dwelling-house, house, abode: the fixed residence of a family or household; one’s own house; the dwelling in which one habitually lives or which one regards as one’s proper abode.’
   It is a definition which, in my judgment, contains the essential elements of a ‘home’ as it is to be understood for present purposes. I have no doubt that an individual may have two homes; but each, in my judgment, to be properly so called, must comprise some element of regular occupation (whether past, present, or intended for the future, even if intermittent), with some degree of permanency, based upon some right of occupation whenever it is required, where, in the words of Kekewich J in Re Esthin, Pritchard v Thomas (1903) 72 LJ Ch 687 at p. 689, ‘you find the comforts of what is known as home’; the fixed residence of a family or household.

   It is a concept which may also have different meanings in different contexts, so the definitions to be found in other cases in connection with other statutes may, for present purposes, be misleading. Nevertheless, I am encouraged in my conclusion by finding a similar theme in two judgments of Lord Evershed MR and Salmon LJ (as he was then). Thus, Lord Evershed MR in Beck v Scholz [1953] 1 QB 570 at p. 575, in a judgment concerned with the Rent Acts, said this:
‘The word “home” itself is not easy of exact definition, but the question posed, and to be answered by ordinary commonsense standards, is whether the particular premises are in the personal occupation of the tenant as his or her ‘home’, or as one of his or her homes. Occupation merely as a convenience for . . . occasional visits . . . would not, I venture to think, according to the commonsense of the matter, be occupation as a “home”.’
   So also, per Salmon LJ in Herbert v Byrne [1964] 1 All ER 882 at p. 887, a case concerned with the Landlord and Tenant Act 1954:
 ‘“Home” is a somewhat nebulous concept, incapable of precise definition . . . In my view, if the evidence establishes . . . a substantial degree of regular personal occupation by the tenant of an essentially residential nature, it would be difficult, if not impossible, for a court to hold that he was not in occupation of the premises as a home. . .’
   The requirement that the applicant or applicants must have a ‘home’ within the jurisdiction for the period specified, however, does not also import an obligation that they or the child should be living or residing there at or for any particular time or length of time. Of course, the less time that any of them spend there, the more difficult is it likely to be to persuade the court that it is a ‘home’; but the only statutory obligation in this connection would seem to be that they spend sufficient time there to enable the local authority concerned to see all parties together in their ‘home environment’ as provided by s. 9(3) and properly to investigate the circumstances as required by s. 18. What that will involve in terms of residence will be a question to be decided in the light of the facts of each case.”

63. Counsel for M does not provide any extra authority but argues that on the authorities submitted, particularly by LA, it would be extremely difficult for the Hs to establish a home, within the normal meaning of the word, in this country.

64. Counsel for F submits that the s 84 route is “fraught with difficulties and uncertainties” one of which is that the case law indicates that a home is a place where there is some element of regular occupation which, she submits, is unlikely to be satisfied by either a hotel or a flat rented simply for the purpose of satisfying the legislation.

65. Counsel for the Hs themselves invites reference to Lester and Pannick on Human Rights Law and Practice and to London Borough of Harrow v Qazi [2003] UKHL 43 and submits:

“It is clear from the ECHR caselaw cited [in the Harrow case] that the term ‘home’ implies occupation of a dwelling with some intention towards permanency or that there is a requirement of continuous and sufficient links between a person and a place or dwelling.”

66. Counsel for the GAL cites the Concise Oxford Dictionary definition of home which is:

“1. Dwelling place; fixed residence of family or household…”

and submits that this does not necessarily imply an arrangement of long duration. However, given the major problems that the GAL submits arise with the s 84 route, he takes the matter no further in his submissions.

67. I am entirely in agreement with Sheldon J that it is a question of fact in any particular case whether or not a ‘home’ has been established here within the meaning of the 2002 Act. In the light of counsels’ submissions, I was left with some doubts as to whether it would ever be feasible for prospective adopters to establish that by a period of temporary residence of less than 10 weeks, designed simply to give the relevant local authority an opportunity to see them with the child. No doubt, the shorter the period for which they were able to stay here, the less likely it would be that the requirements of the legislation would be satisfied.

68. What has become clear in this case, is that the Hs would be quite unable to come to live here with S for any significant period of time or possibly at all. Their family and work commitments simply do not permit it. In the circumstances, there seems to be absolutely no prospect of their establishing a sufficient home here for the purposes of a s 84 order. A further complication is that if the matter were to be approached in this way, it would be necessary for S to spend the balance of the 10 week period with them in the USA and the evidence of Mr Carrion was that this may prejudice the chances of the American orphan petition which, as I explain below, is necessary for her long term entry to the USA.

69. An important reason for pursuing the possibility of a s 84 order to the bitter end has been that it seems to me that that order would approach nearer to the degree of permanence required by the American authorities in relation to the termination of parental responsibility than anything else save an adoption order. However, in the light of the problems I have set out above, it seems to me that there is no alternative but to abandon the s 84 route.

70. I turn therefore to paragraph 19 Schedule 2 Children Act 1989. This is a provision that I have considered before in a similar context in the London Borough of H case to which I referred earlier. It 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. A series of conditions must be satisfied before the court gives approval. It may be helpful if I set out the provisions of the paragraph in full here:

Arrangements to assist children to live abroad
(1) 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.

(2) A local authority may, with the approval of every person who has parental responsibility for the child arrange for, or assist in arranging for, any other child looked after by them to live outside England and Wales.

(3) The court shall not give its approval under sub-paragraph (1) unless it is satisfied that–
(a) living outside England and Wales would be in the child’s best interests;
(b) suitable arrangements have been, or will be, made for his reception and welfare in the country in which he will live;
(c) the child has consented to living in that country; and
(d) every person who has parental responsibility for the child has consented to his living in that country.

(4) Where the court is satisfied that the child does not have sufficient understanding to give or withhold his consent, it may disregard sub-paragraph (3)(c) and give its approval if the child is to live in the country concerned with a parent, guardian, special guardian or other suitable person.

(5) Where a person whose consent is required by sub-paragraph (3)(d) fails to give his consent, the court may disregard that provision and give its approval if it is satisfied that that person–
(a) cannot be found;
(b) is incapable of consenting; or
(c) is withholding his consent unreasonably.

(6) Section 85 of the Adoption and Children Act 2002 (which imposes restrictions on taking children out of the United Kingdom) 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.

(7) Where a court decides to give its approval under this paragraph it may order that its decision is not to have effect during the appeal period.
(8) In sub-paragraph (7) ‘the appeal period’ means–
(a) where an appeal is made against the decision, the period between the making of the decision and the determination of the appeal; and
(b) otherwise, the period during which an appeal may be made against the decision.

(9) This paragraph does not apply to a local authority placing a child for adoption with prospective adopters.

71. It may also help to set out here how far the adoption formalities have progressed within the local authority in relation to S. The LA’s Adoption and Permanency Panel decided on 19 November 2007 in principle that it was in S’s best interests to be adopted. I understand that the decision maker has/will accept this recommendation. There has been no formal approval of the Hs as adopters or of the match between them and S.

72. The circumstances in the London Borough of H case were similar. The local authority’s adoption panel had recommended that adoption was in the child’s best interests in principle but not approved the prospective adopters or the placement of the child with them. The local authority wished to send a child to live with relatives in Germany with the hope and intention he would be adopted by them in due course. I permitted that under paragraph 19.

73. Counsel for M submits, in effect, that my conclusion in the earlier case of London Borough of H was wrong and that paragraph 19(9) prevents reliance on paragraph 19 to permit the LA to arrange for S to go to live with the Hs in the USA. He argues that the legislature must have had a purpose in adding the new sub-paragraph 19(9) as part of the changes introduced in the 2002 Act and that the purpose must have been to ensure that overseas adoption could only take place where there has been compliance with ss 84 and 85 of the Act. He therefore submits that where the LA plans a future adoption abroad for a child, whatever stage that plan has (or has not) reached, it cannot arrange for that child to go to live with the prospective adopters under paragraph 19. He points to a number of factors which he says indicate that planning has reached the point where paragraph 19 cannot apply. The factors are that: the Hs want to adopt S and the LA care plan makes clear that adoption is its favoured option, the LA has funded an investigation as to the H’s suitability and Shepherd Care have approved them as suitable adopters, the Hs have embarked upon the presentation of an orphan petition in the USA on the basis of adoption there and the LA have agreed to pay their attorney’s costs in relation to the adoption.

74. I have given these submissions careful thought. I agree that, at first sight, there is an attraction to a legislative scheme in which all cases in which the local authority “plan” was for a child to be adopted would be covered by ss 84 and 85. On further thought, however, one can see that it might have been difficult to draft provisions that would identify with complete clarity in each and every case whether the local authority’s intentions were actually a plan for adoption. When does an optimistic hope that a particular family placement may blossom into an adoption become a plan for these purposes, for example? A legislative scheme that depends on the point reached in the local authority’s adoption formalities at least has a greater degree of clarity. I remain of the view I reached in London Borough of H that the scheme that exists by virtue of paragraph 19 and ss 84 and 85 is based on this foundation and not upon that for which counsel for M contends. I will try to explain a little more fully than I did in that case why I have reached that conclusion.

75. The important provisions of paragraph 19 for the present purposes are sub-paragraphs (6) and (9). Paragraph 19(6) is concerned with children who would potentially be protected by s 85 of the 2002 Act. These are children who are being removed from the country “for the purpose of adoption”. Paragraph 19(9) concerns children whom the local authority is “placing ….for adoption”. If the local authority is placing a child for adoption, paragraph 19(9) provides that paragraph 19 does not apply. The existence of paragraph 19(6), which disapplies s 85 of the 2002 Act where a child is to live outside England and Wales with paragraph 19 approval of the court tells us that after you have excluded all those children whom the local authority is “placing….for adoption” and to whom, by virtue of paragraph 19(9), paragraph 19 does not apply, there remains a category of children to whom paragraph 19 does apply who might come within the terms of s 85 i.e. children who are being removed from the country “for the purpose of adoption”. If it were not so, there would be no need of paragraph 19(6). It follows that being removed from the country “for the purpose of adoption” and being placed for adoption are not precisely the same thing. Given that there can be little doubt that placing abroad for adoption is a species of removal for the purpose of adoption, placement for adoption must therefore necessarily be a narrower concept than removal for the purpose of adoption.  

76. There is no definition in the Children Act of “placing a child for adoption”. However, Paragraph 19 obviously plays a part in the overseas adoption scheme of the 2002 Act, even though it is to be found in the Children Act and not in the 2002 Act itself, and its terms need to be interpreted with the adoption provisions of the 2002 Act and the associated regulations very much in mind.

77. The Adoption Agencies Regulations 2005 require various formalities to be observed where an adoption agency is considering adoption for a child. Three matters have to be submitted to the agency’s adoption panel for the panel to make recommendations. They are whether the child should be placed for adoption (regulation 18), whether a particular prospective adopter is suitable to adopt a child (regulation 26) and whether the child should be placed for adoption with the particular prospective adopter (regulation 32). The agency takes into account the recommendations of the panel in deciding whether an application should be made for a placement order and whether the child should be placed for adoption with a particular prospective adopter.

78. S 18 of the 2002 Act provides that an adoption agency may only place (or leave) a child with prospective adopters by two routes, either with parental consent under s 19 or under a placement order. The precise terms of s 18(1) are as follows:

“An adoption agency may—
(a) place a child for adoption with prospective adopters, or
(b) where it has placed a child with any persons (whether under this Part or not), leave the child with them as prospective adopters,
but, except in the case of a child who is less than six weeks old, may only do so under section 19 or a placement order.”

79. I have considered whether the concept of placing a child for adoption in s 18 might differ in some way from the concept of placing a child for adoption in paragraph 19(9) but it seems to me that it cannot. Paragraph 19(9) was inserted by the 2002 Act and it seems vanishingly improbable, in those circumstances, that two different types of placing for adoption were intended. Therefore a local authority can only be placing a child for adoption with prospective adopters within paragraph 19(9) if it has parental consent or has obtained a placement order.

80. M does not consent to S’s adoption. The only “placing” route available to the LA in this case would be a placement order. No such order has, of course, been made.

81. It follows, therefore, that assuming the procedural and welfare conditions of paragraph 19 can be satisfied and I give my approval, there is no reason why arrangements should not be made for S to go abroad under that provision.

82. I am entirely satisfied that living outside England and Wales with her the Hs would be in S’s best interests and that suitable arrangements have been/will be made for her reception and welfare in the USA. S is too young to have sufficient understanding to give or withhold her consent to living in the USA so that consent is not required. F consents to her going to live there and the requisite formalities to record that consent should be attended to if they have not been already. M does not consent. I am, however, satisfied that she is withholding her consent unreasonably because, for all the reasons I set out earlier in my judgment, S’s welfare demands that she be placed with the Hs if that is at all possible.

83. I therefore give my approval under paragraph 19 to the local authority arranging for S to live outside England and Wales.

The American law
84. That brings me to the provisions of the American law. Mr Carrion, a Florida immigration lawyer, advised me about the immigration requirements there.  It appears that, subject to humanitarian parole (which has to be sought in Washington and which Mr Carrion did not believe would entitle S to remain in the United States for her whole childhood), a child in S’s position will not be permitted to enter the United States except for the purpose of adoption. There appeared to be no possibility of obtaining a visa to live with the Hs on a family fostering basis.

85. Approval of S’s entry to the States would be a two stage process. The first stage, which has successfully been completed, is the approval of the prospective adopters as suitable. The second stage is the presentation of an “orphan petition” by which the child is determined to be an orphan. There are several bases on which a child can be classed as an orphan. The only one that is relevant here is “separation ….from…both parents”. Separation is defined as,

“ the involuntary severance of the child from his or her parents by action of a competent authority for good cause and in accordance with the laws of the foreign-sending country. The parents must have been properly notified and granted the opportunity to contest such action. The termination of all parental rights and obligations must be permanent and unconditional. ”

86. Now that freeing orders no longer exist, there is no order of the English court which obviously satisfies the requirement that the termination of parental rights and obligations must be permanent and unconditional. 

87. Various orders have been suggested that it was felt might convey to the American authorities that the state of affairs does in fact constitute the sort of separation they require. It was suggested that S could be made a ward, for example. This idea found favour with Mr Carrion because the court would retain custody of the child rather than the parents. It was an idea that missed a number of points, however. Most importantly, it would contravene the restrictions on s 100 Children Act 1989 on the use of wardship in local authority cases. Furthermore, wardship does not terminate parental responsibility either temporarily or permanently. It simply makes the exercise of parental responsibility subject to court control by virtue of the wardship order. Any party to the proceedings could apply to discharge the wardship order and if it were discharged, the position would revert to that which was in place before it was made.

88. Another suggestion was that I should make an order under s 91(14) Children Act 1989 prohibiting the parents from making applications under the Act except with leave of the court. This provision is generally used as a weapon of last resort where a parent has made repeated and unreasonable applications already which is not, of course, this case. That is not the only situation in which it can be used but its use in this case would be quite exceptional and would be only in an attempt to offer to the American authorities some further indication of the difficulty that would be faced by these parents if they sought to return to court to overturn the orders that I will be putting in place at the end of this hearing. As a tool to achieve that, it is a weak one in my view because a s 91(14) order does not bar applications being made, it merely imposes a filter on them by requiring the litigant to obtain prior leave from the court. However, as it is thought likely to assist, and as the circumstances of this case are exceptional, I am prepared to grant such an order. I will hear submissions as to the time period that would be most appropriate.

89. What seems to me likely to be of most assistance is if I make the care order sought in relation to S, permit the LA under paragraph 19 to arrange for her to go to live with the Hs, and state baldly to the American authorities that this case is one in which a freeing order would have been an extremely likely outcome under the old law given that there is no realistic prospect of S’s parents taking over her care within a timescale that fits with her needs. It is noteworthy that M herself would consent to adoption if it were to be adoption in this country and F consents to adoption by the Hs. They both recognise, therefore, that a permanent alternative home is required for their child and the court and the LA would have been anxious to secure that for S without delay either by proceeding directly to adoption or by granting a freeing order as a precursor to adoption.

Full or interim care order?
90. There is no difficulty in making a full care order in relation to R.

91. I remain concerned that I am being asked to proceed to make a full care order in relation to S when there remain significant uncertainties about her position and whether she will be able to go to live in the USA. I indicated in my Draft Provisional Judgment that I would like to see the care plan deal rather more fully with the contingency planning should the American option stall. As submissions for the GAL indicate, however, it is very difficult for the LA to plan for contingencies in this case. There are so many possible pitfalls. It would not be proper to require the LA to make a contingency plan for S should her relationship with the Hs break down after she has been adopted by them. That would be a matter for the American authorities. What they should plan for, at least in broad terms, is the contingency that it may not be possible for S to go to live with the Hs or that she may go to live there and the placement may break down for one reason or another before adoption. They also need to have a contingency plan in case immigration control in the USA means that S cannot go there to live with the Hs at all. I am afraid that I am unable to recollect whether a revised care plan was submitted on the occasion in December when there were further oral submissions in front of me. I suspect not and I would like to see the current plan sufficiently amended to indicate broadly what the approach would be in these situations and to set out a guide as to the sort of time that the LA would be prepared to allow to elapse in an attempt to arrange for S to go to the USA before it concludes that it should substitute an alternative plan, almost certainly an adoption by non-family members in this country. Because I am conscious that the USA option may well not succeed at all if S is subject only to a series of interim care orders, with these safeguards I might be persuaded that a final care order could be made, given the importance that I attach to her being enabled to go to live with her relatives.

92. This case amply demonstrates the problems that there are in placing children with relatives who happen to live abroad. As I said in the body of this judgment, if S cannot go to live with her family in the USA, it will be a most regrettable triumph of bureaucracy and state control over humanity. McFarlane J commented in 2005 in H County Council v B on the onerous and disproportionate burden imposed on foreign relatives who sought an order under s 84 of the 2002 Act by the requirements as to residence in this country. There is power to modify the provisions of s 85 by regulation but nothing has been done and I am told by counsel for the GAL that the Department for Children, Schools and Families indicates that no fresh regulations are planned in the immediate future despite the receipt of representations from various quarters about the practical difficulties which are being caused by the present legislation. I would urge that the Department look again at this.