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The President repeats lessons for adoption cases involving European nationals

He is ‘acutely conscious’ of European concerns about non-consensual adoption

In Re CB (A Child) [2015] EWCA Civ 888, the President of the Family Division, Sir James Munby, has repeated helpful 'lessons' which he says must be observed in cases involving European nationals in English public law children proceedings, especially those involving adoption applications.

He said that he was acutely conscious of the concerns voiced in many parts of Europe about the law and practice in England and Wales in relation to non-consensual adoption. He again referred to part of his judgment in Re E (A Child) [2014] EWHC 6 (Fam). There were two important points to be borne in mind: first, as stated in Re R (A Child) [2014] EWCA Civ 1625, the Adoption and Children Act 2002 permits, in the circumstances there specified, non-consensual adoption and so long as that remained the law as laid down by Parliament, LAs and courts must loyally follow and apply it. Secondly, whatever the concerns expressed elsewhere in Europe, there could be no suggestion that, in this regard, the domestic law of England and Wales was incompatible with the UK's international obligations or with its obligations under the ECHR.

The President continued that the lessons of this and other cases were clear but bore repetition. We must be understanding of the concerns about our processes voiced by our European colleagues and must do everything in our power to ensure that our processes are not subject to justifiable criticisms. This means ensuring that:

  1. Local authorities and the courts must be appropriately pro-active in bringing to the attention of the relevant consular authorities at the earliest possible opportunity  the fact that care proceedings involving foreign nationals are on foot or in contemplation;
  2. The court must, whether or not any of the parties have raised the point, consider at the outset of the proceedings whether the case is one for a transfer in accordance with Article 15 BIIA (see Re E, paras 31, 35-36);
  3. If there is no transfer in accordance with Article 15, the court, if the LA's plan is for adoption, must rigorously apply the principle that adoption is 'the last resort' and only permissible 'if nothing else will do' and in doing so must make sure that its process is appropriately rigorous (see Re B-S and Re R);
  4.  In particular, the court must adopt, and ensure that guardians adopt, an appropriately rigorous approach to the consideration of the 'welfare checklist' in section 1(4) ACA 2002, in particular to those parts of the checklist which focus attention, explicitly or implicitly, on the child's national, cultural, linguistic, ethnic and religious background and which, in the context of such factors, demand consideration of the likely effect on the child throughout her life of having ceased to be a member of her original family.

The judgment and extended summary by Victoria Flowers of Field Court Chambers are here.