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Adoption, foreign nationals and parental consent: where are we now?

Michael Jones, Barrister, Deans Court Chambers, analyses the implications of a recent judgment in Re JL and AO (Babies Relinquished for Adoption) which concerned the adoption of children with the consent of the foreign parents.

Michael Jones, Barrister, Deans Court Chambers

The recent case of Re N (Adoption: Jurisdiction) [2015] EWCA Civ 1112 dealt with the highly controversial issue of the ability of the English courts to sanction the adoption of children who are the nationals of foreign states (for an article on Re N  click here). Re N involved the issue of what has been termed non-consensual adoption, i.e. adoption in cases where the parents of the child oppose such an outcome; the controversy arises due to the fact that our jurisdiction is one of only a small number in the modern world that recognise non-consensual adoption as a concept. Hence the dissatisfaction displayed by foreign states in a handful of cases in which a child who is a national of their country has been subject of a placement order application, or an application for an adoption order in the absence of parental consent, within this jurisdiction (a good example of such a case being that of Re CB (A Child) (2015) EWCA Civ 888). A scenario that had not been dealt with by Re N was that in which a child who is a foreign national is actually relinquished for adoption by his or her parents in England and Wales, in other words where the parents positively support adoption and there are no proceedings extant under Part IV of the Children Act 1989. Such circumstances were those that concerned the court in Re JL and AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam).

The facts in the case of JL
JL was the male child of Estonian parents. The mother had indicated shortly after JL's birth that she did not wish to care for him and as a result, JL was voluntarily accommodated by the local authority. The mother was expressly opposed to placement with a family member and sought for her child to be placed for adoption, as did the father. A CAFCASS officer was then appointed pursuant to regulation 20 of the Adoption Agency Regulations 2005 for the purpose of obtaining the mother's formal consent. Accordingly, the mother provided the necessary consent under section 19 ACA 2002 and had no further contact with JL.

Following the withdrawal of the maternal aunt as a prospective carer and the notification from the maternal grandmother in Estonia that the family supported JL's adoption, the local authority made an application for a placement order. The Estonian authorities subsequently made clear that they wished to play no part in the matter and were "pleased" for JL to be adopted in the UK.

The facts in the case of AO
The parents of AO were Hungarian citizens. Following a referral to the local authority prior to AO's birth, the pre-proceedings protocol was initiated due to concerns over the welfare of the unborn child. The parents made clear that they wanted nothing to do with the baby post-birth and did not want family members notified of the impending birth. Following notification by the local authority, the Hungarian authorities contacted the local authority and made clear that their national law forbade the adoption of Hungarian citizens (as AO was) by the English authorities. They sought to have AO placed for adoption with a Hungarian family in Hungary; the parents opposed this course of action and wished for AO to be placed for adoption in England.

The local authority then made an application under the inherent jurisdiction prior to AO's birth, in order to determine the issue of habitual residence following birth. The Hungarian authorities set out their position as being that the child could not have attained habitual residence within the United Kingdom because the parents had only left Hungary shortly before the child's birth and were therefore not habitually resident within this jurisdiction at the relevant time.

The hearing before Baker J
Both sets of proceedings were listed jointly before Baker J. In respect of JL, the local authority and the children's guardian both sought for JL to be placed for adoption in this country as soon as possible and invited the court to make a placement order. JL's parents had not engaged and were not represented. In relation to AO, the local authority sought to have the child placed for adoption in Hungary, with the court invoking the inherent jurisdiction in order to provide for her to be transported to Hungary for this purpose. The local authority's stance was one supported by AO's guardian. AO's parents, however, opposed this plan; they sought for their child to be placed with adopters in this country without delay and would not consent to placement for adoption in Hungary.

The issues dealt with by the court in this case were wide-ranging and also crossed from the international arena into issues of domestic law relating to the hurdles that must be crossed in order to sanction the adoption of a child in circumstances where such action is not opposed by a parent.

The adoption of foreign nationals
This issue was dealt with at length in the case of Re N, with the jurisdictional provisions relating to adoption in England and Wales being set out by the Court of Appeal as follows:

1) "Adoption in this country is governed by statute, now the Adoption and Children Act 2002, and adoption and placement orders can only be granted under that Act." No other statute regulates jurisdiction in relation to applications for adoption or placement orders

2) "S.49 of the Act lays down the core requirement which must be satisfied if the courts of England and Wales are to have jurisdiction in relation to an adoption application … an application can only be made by a prospective adopter who fulfills one of the conditions as to domicile/habitual residence in the British Islands"

3) "Nowhere in the Act is there any requirement relating to the nationality or domicile or … presence of the child who is to be the subject of the application. These things may bear upon the court's decision as to whether, in fact, to make the adoption order sought but they do not affect its jurisdiction so to do". Therefore the courts of this country have jurisdiction under the Act to make adoption orders in respect of children who are not UK citizens

4) "The 2002 Act is also silent as to the nationality or domicile or presence of the child's natural parents. They are a vital part of the adoption process under the Act because no adoption order can be made unless they consent or their consent is dispensed with, but there is nothing in the Act to prevent the court, whether as a matter of jurisdiction or otherwise, from dealing with the case because they are foreign nationals or domiciled abroad"

5) The jurisdiction to grant a placement order is governed by ss 21 and 22. "The court has jurisdiction to make a placement order on the application of a local authority which fulfills the conditions set out in section 22"

6) "What the English court cannot do, however, is to assume without more that its determination will bind other jurisdictions. They will make their own determination as to the status of the natural parents vis-à-vis the child and of the child vis-à-vis the adopters and the natural parents and it is for that reason that, although foreign connections do not prevent the English court from having jurisdiction and power to grant an adoption order, they are potentially very material in its determination of how to exercise that power"

7) Accordingly, although the foreign nationality of a child does not prevent a court making a placement order or adoption order, "when considering whether or not to make an adoption order, the court should consider what links the child has to other countries … and should consider what risk there is that any adoption order that it makes may not be universally recognised and reflect upon the practical implications of this for the child … This is not to say that an adoption order could not be made if it were to be demonstrated that it would not be recognised in a country which may be of importance for the child in future but it would be a factor that would need to be weighed in the balance, along with all the others, in deciding what order is going to be most conducive to the child's welfare throughout his life"

8) "As the foreign connections are relevant to the question of the making of an adoption order, so they must also be relevant to an application for a placement order, not least because the court can only dispense with the parent's consent if the welfare of the child requires that and that cannot be determined if a purely insular approach is taken"

The above is a brief summary of the position, with the full judgment required reading for all practitioners involved in cases with similar issues. The judgment also provides a useful summary of the history of adoption within the United Kingdom, with Munby P noting that until the late 1960s it was predominantly used in circumstances in which a baby was relinquished by the parents for adoption, as was the case with both JL and AO. 1

Children relinquished for adoption
The cases of JL and AO were those referred to by the President in Re N as adoptions of the "traditional type", which have now become rare in the context in which adoption is used in the modern day English legal system. Due to the fact that adoptions relating to children relinquished at birth will usually proceed by way of consent, thereby negating the need for any contested public law proceedings, there had been no recent consideration of the legal principles and procedure to be applied, prior to this case.

The legal framework relating to adoption in this country is set out in the ACA 2002. In placing a child for adoption the local authority or any other adoption agency will have to have regard to what is often termed as the "enhanced welfare checklist" set out at section 1(4). The wishes and feelings of relatives, including parents, are one of the welfare considerations that must be taken into account, with the court in this case taking the view that:

"Where a child has been relinquished for adoption, the wishes and feelings of the parents are therefore likely to be an important consideration, although they must be considered in the context of the other factors in s.1(4) and the child's welfare generally."

Interestingly, another consideration that was deemed to be of importance in such cases is the desire of the parents to confidentiality, with the parents in the AO case expressly opposed to family members being notified of the birth. The recent case law following the seminal case of Re B-S has, of course, placed a duty upon local authorities to exhaust all realistic placement options prior to recommending placement outside of the birth family, with this exercise to include an assessment of prospective carers within the family; the difference between the circumstances present in Re B-S and those in which children are relinquished for adoption is, however, a stark one. Re B-S involved non-consensual adoption, whereas the cases of JL and AO were cases where informed consent was free and forthcoming. Reference was made by Baker J to the observations of the Court of Appeal in Re C v XYZ County Council [2007] EWCA Civ 1206, where the mother in that case had consented to adoption but had refused to identify the father. The Court of Appeal reversed the decision of the court at first instance to direct the local authority to disclose the birth of the child to the maternal family and the guardian in order to take steps to identify the father. In doing so, Arden LJ made the following comments:

"I do not consider that this court should require a preference to be given as a matter of policy to the natural family of a child. Section 1 does not impose any such policy. Rather, it requires the interests of the child to be considered. That must mean the child as an individual. In some cases, the birth tie will be very important, especially where the child is of an age to understand what is happening or where there are ethnic or cultural or religious reasons for keeping the child in the birth family. Where a child has never lived with her birth family, and is too young to understand what is going on, that argument must be weaker. In my judgment, in a case such as this, it is (absent any application by any member of the family, which succeeds) overtaken by the need to find the child a permanent home as soon as that can be done."

Having reviewed the authorities in this area, Baker J concluded:

"These authorities demonstrate that in such cases the wishes and feelings of the parents are likely to carry significant weight in the evaluation of the child's welfare. But they are not invariably decisive. As a result, the local authority cannot give any guarantee that it will keep the existence of the baby confidential. Each case will turn on its own facts. In some cases, an analysis of the circumstances will lead the local authority to conclude that it is unnecessary to inform the natural family, but in other cases the authority will decide that it must consult the extended family in order to carry out the necessary evaluation of the realistic options. Each case turns on its own facts, but the child's welfare will always be the paramount consideration." [Emphasis added]

Evidently this line of reasoning applies not only to situations involving children who are foreign nationals, but to all cases in which consent to disclosure of the identity and details of a father or extended family members is an issue. Each case will turn on its own facts and the child's welfare will always be at the forefront of the court's mind.

"Nothing else will do"
Following Re B, Re B-S and the line of authorities since the judgments in those cases were handed down, much has been made of the fact (quite correctly) that adoption in the absence of parental consent should be sanctioned only as a last resort, where nothing else will do. A question for consideration in the cases before Baker J was whether or not the approach advocated by the Supreme Court and the Court of Appeal in the aforementioned cases should be applied by the courts in cases involving children who have been relinquished for adoption. The judgment in Re P (Step-Parent Adoption) [2014] EWCA Civ 1174 is a case of interest when considering this question; here McFarlane LJ considered the approach that should be taken in cases where a step-parent wished to adopt a child, noting that the ECHR had distinguished such cases from those involving the severance of family links in relation to a child taken into care of the state. McFarlane LJ concluded:

"In an adoption application the key to the approach both to evaluating the needs of a child's welfare throughout his or her life and to dispensing with parental consent is proportionality. The strong statements made by the Justices of the Supreme Court in Re B and taken up by judges of the Court of Appeal in subsequent decisions to the effect that adoption will be justified only where 'nothing else will do' are made in the context of an adoption being imposed upon a family against the wishes of the child's parents and where the adoption will totally remove the child from any future contact with, or legal relationship with, any of his natural relatives. Although the statutory provisions applicable to such an adoption (in particular ACA 2002, s 1 regarding welfare and s 52.regarding consent) apply in precisely the same terms to a step-parent adoption, the manner in which those provisions fall to be applied may differ and will depend upon the facts of each case and the judicial assessment of proportionality.

By way of example, in a child protection case where it is clear that rehabilitation to the parents is not compatible with their child's welfare, the court may be faced with a choice between adoption by total strangers selected by the local authority acting as an adoption agency or adoption by other family members. There is a qualitative difference between these two options in terms of the degree to which the outcome will interfere with the ECHR, Art 8 rights to family life of the child and his parents; adoption by strangers being at the extreme end of the spectrum of interference and adoption by a family member being at a less extreme point on the scale. The former option is only justified when 'nothing else will do', whereas the latter option, which involves a lower degree of interference, may be more readily justified."
[Emphasis added]

Accordingly, there is a need in each case to evaluate the proportionality of the intervention in family life that is being proposed; context is of prime importance and no adoption order will be justified unless it is both necessary and proportionate, in line with ECHR principles. In cases where children are relinquished for adoption, Baker J concluded that the degree of interference with family life is less than that where the parent-child relationship is severed against a parent's wishes. The decision of the parents is a fact that must be taken into account in the evaluation of proportionality and necessity. The correct approach in such cases is not to start upon the premise that the evidence must be demonstrate that "nothing else will do" save for adoption, but instead to apply the welfare checklist set out at section 1 ACA 2002 and to ensure that paramount consideration is given to the child's welfare throughout his or her life. The local authority and the court must consider the parents' wishes that their child be adopted in the context of all of those factors, including the child's background, the likely effect on the child of having ceased to be a member of the original family and the ability and willingness of any of the child's relatives to meet the child's needs. What is required in all cases of adoption, regardless of whether consent is forthcoming from a parent, is the need to carry out a thorough analysis of the realistic options for the child, as made clear in Re B-S; this is an obligation that a local authority must fulfill. In relation to children who are foreign nationals and who are relinquished by the birth parents for adoption in this country, Baker J found that a local authority may come to one of the following conclusions having carried out its analysis of the realistic options available:

a) It may reach the conclusion that adoption in England and Wales is in the child's best interests, in which case it can proceed to obtain the parents' formal consent. If consent is given then the local authority is authorised to place the child for adoption under s19 ACA 2002. However, pursuant to s22, if a local authority is authorised under s19, there is no obligation to apply for a placement order as the condition in s22(1)(b) is not satisfied and unless the child is subject to a public law order or ongoing care proceedings, the local authority has no power to apply for an order under s22(2) or (3); it would therefore not be possible to make an application for a placement order in such circumstances.

b) If it concludes that a child should be placed with family members or in foster care in this country, in may place under s20 (provided the necessary statutory and regulatory provisions are satisfied).

c) It may decide to place with family members in the country of origin. If consent to placement abroad is forthcoming from the parents, it may proceed to arrange placement without court approval. If, however, the child is subject to a care order, it will require court approval (see CA 1989 Schedule 2 para 19(1) and (2)).

d) It may decide to place with prospective adopters in the country of origin; the procedure under s84 ACA 2002 may be available in order to achieve this, if it is, then CA 1989 schedule 2 Para 19 does not apply.

e) It may decide to send the child to a foreign country in order for the authorities there to arrange adoption. Pursuant to s85 ACA, the local authority would be unable to send the child abroad "for the purposes of adoption" unless the child is subject to a care order and the Court makes an order under Schedule 2 para 19.

In reaching its conclusions, the issue of consent will be crucial. The local authority must comply with the relevant provisions of the ACA and the Adoption Agencies Regulations 2005, with rule 14 of the regulations imposing a duty to discuss with the parents the possibility of adoption, whilst ensuring that they fully understand the implications of consent and subsequent adoption; the consent must be "fully informed" otherwise it will be rendered invalid.

Obligations placed upon local authorities in cases where a child who is a foreign national is relinquished for adoption
Whilst the Vienna Convention on Consular Relations 1963 may not place express "duties" upon a local authority (see Re CB) there is an obligation to inform the consular officials of a child's home state in specific circumstances where the relevant provisions contained within ss36 and 37 are met. Guidance from the President on the approach that should be taken in relation to ss36 and 37 can be found in Re E (A Child) [2014] EWHC 6 (Fam) and also in Re CB. Essentially, there is an obligation to inform consular officials of the fact that care proceedings are ongoing or "in contemplation" at the "earliest opportunity". Furthermore, the Department for Education's guidance published in July 2014 provides the following advice;

"Social workers need to consider working with foreign authorities at a number of stages during child protection cases, including:

• when carrying out an assessment under section 47 of the Children Act 1989, where the child has links to a foreign country, in order to understand the child's case history and/or to help them to engage with the family;

• when a child with links to a foreign country becomes the subject of a child protection plan, has required immediate protection, or is made subject to care proceedings, the social worker should consider informing the relevant foreign authority; and

• when contacting or assessing potential carers abroad (such as extended family members)"

"Social workers should inform the relevant Embassy when a child with links to a foreign country has become the subject of a child protection plan, has required immediate protection or has become the subject of care proceedings, unless doing so is likely to place the child or family in danger and provided any necessary consent to disclose information has been obtained. Decisions should be linked to a robust and thorough risk assessment." [Emphasis added]

In relation to the applicability of ss36 and 37 in the context of children who have been relinquished for adoption, the court distinguished between a child removed into care by compulsion, and a child placed into state care via properly informed parental consent; in the case of the latter situation, the child cannot be said to be "detained" within the meaning of s36. Accordingly there is no obligation arising under s36 to notify consular officials of the foreign state in cases where a child is voluntarily accommodated . However, even where no obligation exists under the Convention, the local authority may conclude that notifying the foreign authorities is necessary in order to discharge its statutory powers and obligations relating to assessments of a child in need; information from abroad may be an essential component in improving its understanding of the matters pertinent to the child's welfare needs as set out within s1(4) of the 2002 Act. Whether or not the local authority needs to make such enquiries of the foreign country will depend on the circumstances of each case. A final point raised by Baker J was that in circumstances where a child is made a party to proceedings and a guardian appointed, there will be an obligation to inform the foreign authorities which will arise under s37, even if no obligation under s36 exists.

Conclusions reached on the facts of each case
Having undertaken a detailed analysis of the case law and statute, Baker J concluded that given JL's mother had provided fully informed consent to adoption in accordance with the regulatory provisions, the local authority was authorised to place the child for adoption under s19(1) ACA. As a result, there was no obligation under s22(1) to apply for a placement order as the condition in s22(1)(b) was not satisfied. Section 22(2) and (3) did not apply, nor had there been any proceedings under Part IV of the CA 1989 in relation to JL; the local authority could therefore not apply for a placement order and the court had no power to make one. The application of the local authority was dismissed.

In relation to AO, the court was satisfied that jurisdiction under BIIa existed as, although the child was not habitually resident in the UK, she had never been resident in any other jurisdiction and therefore had no habitual residence, allowing the court to attain jurisdiction via Article 13 BIIa.  In request of the transfer of proceedings pursuant to Article 15 BIIa as the application before the court fell into the category of "a measure preparatory to adoption" it fell within the scope of Article 1(3)(b) BIIa meaning that the Brussels II instrument did not apply; for this reason the matter fell outside of the BIIa and accordingly, Article 15 and the transfer provisions therein could not be utilised. Baker J then turned his attention to the submission of the local authority, that the inherent jurisdiction could be invoked in order to provide for the transfer of AO to Hungary so that she could be adopted there. In light of the fact that s85 ACA prevents a child who is habitually resident in the British Isles (as AO had now become) from being removed from the jurisdiction for the purposes of adoption, he reached the conclusion that the use of the inherent jurisdiction in such circumstances would effectively be circumventing the statutory procedure 3 and that it would not be inappropriate for the local authority to seek to invoke care proceedings in relation to AO, which could potentially open the avenue for the court to authorise placement in Hungary under CA 1989 Schedule 2 para 19. Baker J therefore concluded that the avenue of the inherent jurisdiction was not open to him, particularly given the fact that he was satisfied that the local authority could achieve its aim under the relevant statutory provisions within public law proceedings, resulting in s100 preventing the inherent jurisdiction from being utilised by the court. He concluded that in the event that the local authority wished to place AO in Hungary, then care proceedings should be instigated and placement under Schedule 2 para 19 considered.

The court's conclusions were neatly summarised within the following final comments of the judge:

"(1) The jurisdictional rules in Council Regulation (EC) 2201/2003 (Brussels IIA) do not apply to decisions on adoption or measures preparatory to adoption. The jurisdiction to make orders for the placement for adoption and the adoption of children in England and Wales is derived wholly from statute. The statutory scheme is set out in the Adoption and Children Act 2002, but also includes Schedule 2 paragraph 19 of the Children Act 1989. There is no other jurisdiction to make such orders, either under statute or under the inherent jurisdiction. Although the inherent jurisdiction may be invoked to supplement the statute, it cannot be used to make orders that cut across or conflict with the statutory scheme.

(2) The decision of the Supreme Court in Re B concerned non-consensual adoptions. Where parents have relinquished their baby and expressed a wish that he or she be adopted outside the natural family, the degree of interference with family life rights is less than where the parent-child relationship is severed against the parents' wishes. The fact that the parents have taken this decision is an important consideration when determining whether the interference is necessary and proportionate. It follows, therefore, that approval of adoption in such cases does not depend on the local authority or court reaching the conclusion that nothing else will do. But the parents' wishes, although important, are not decisive. They must be evaluated along with all the other factors in the welfare checklist in s.1(4) of the 2002 Act. In all adoption cases – non-consensual and consensual – the local authority is under an obligation to carry out a thorough analysis of the realistic options for the child, as highlighted in Re B-S .

(3) Article 36 of the Vienna Convention on Consular Relations 1963 does not apply in cases where a child has been relinquished for adoption because the child in those circumstances is not being "detained". Following the decisions in Re E and Re CB, Article 37 of the Convention applies where a guardian is appointed in placement order or adoption proceedings.

(4) Where parents have given a valid consent to placement for adoption – unconditionally and with full understanding of what is involved – the local authority will be "authorised" to place the child for adoption. In such circumstances, there is no obligation or power to apply for or make a placement order under s.21 of the 2002 Act. Accordingly, the case of JL has been resolved by the order containing declarations as set out above.

(5) In AO's case, where the issue is whether the baby should be adopted here or in Hungary, the proceedings fall outside Brussels IIA and cannot therefore be transferred to Hungary under Article 15 of that regulation. The court cannot use the inherent jurisdiction in a way which cuts across or conflicts with the statutory scheme, by facilitating a placement abroad in circumstances where the parents do not consent and without consideration of whether they are acting unreasonably in withholding their consent, or by sending the child abroad for the purposes of adoption in circumstances which are unlawful under s.85 of the 2002 Act. I therefore decline to make an order (as sought by AO's guardian) transferring the proceedings to Hungary or make an order (as sought by the local authority and the guardian) under the inherent jurisdiction authorising the placement of AO in that country.
" [Emphasis added]

In addition to undertaking an in-depth analysis of cases involving children who are foreign nationals where adoption is sought via consent, Baker J's judgment also provides useful commentary on the application of the principles set out in Re B and Re B-S and the way in which these principles should be applied generally in cases involving children who are relinquished for adoption by a birth parent. The issues dealt with in this case are extensive and many practitioners will eagerly await the outcome of the Supreme Court's decision in the Re N case as well as the outcome of the reference to the CJEU in relation to the issue of Article 15 BIIa in Child and Family Agency v JD (C-428/15). It will also be interesting to see whether the local authority in AO's case attempt to appeal the judgment. A final point of curiosity is the approach that the court may take, in the event that care proceedings are issued, the approach that the court will take; the court took the view that the threshold criteria could be met in a case in which a child is relinquished for adoption and intellectually it may be possible to construct a satisfactory threshold document, but if parents who are foreign nationals decide to relinquish their child for adoption within the UK and the law within this jurisdiction relating to adoption applies, even in the event the authorities of the state of origin object, provided that the parents' consent is free and fully informed, should the adoption agency really be prevented from following their express wishes? It may be that the answer to this question will depend upon the result of the comprehensive welfare analysis that a local authority should undertake in such circumstances. Evidently, these are questions for another day.



1 It should be noted that permission to appeal has now been given by the Supreme Court in relation to the Court of Appeal's judgment in Re N, with the ambit of appeal including the interpretation of Article 15 (an issue which is also the subject of an outstanding reference to the CJEU from the Supreme Court of Ireland).

2 Despite this, local authorities need to take a cautious approach in cases involving the use of s20 accommodation, particularly in light of the President's comments in Re N

3 Interestingly, Baker J borrows the phrase used by Lord Sumption in the recent Supreme Court judgment in B (A Child); these comments were actually obiter and were made in the context of a dissenting judgment. It remains to be seen to what extent the Courts will be lead by the commentary of the justices in that case in relation to the use of the inherent jurisdiction.