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Re K [2015] EWHC 3921 (Fam)

Application for an adoption order by a couple with whom the child had been living since July 2013 when she was 8 months old. The mother had indicated her opposition; however her consent was dispensed with and the adoption order was made.

S was born in November 2012 in Bulgaria. S's mother is a Bulgarian national and member of the Roma community who was herself still a minor at the time of S's birth.  The identity of S's father is not known. Soon after S's birth, the mother travelled with S from Bulgaria to England. The mother struggled to care for S and on 24 June 2013 she left England, leaving S behind; S was taken into police protection and then placed with the applicants on 31 July 2013.

Care and placement proceedings where initiated. The mother did not engage with the proceedings: she moved around Europe, was impossible to locate, did not return calls by the local authority and did not stay in touch. The last contact between the English authorities and the mother was a telephone call on 14 May 2014 when the mother said she was coming to court, however she did not, and all further calls were unanswered. On 3 November 2014 a placement order was made in favour of the local authority and on 27 January 2015 authority matched S with the applicants.

In July 2015 the applicants made an application for an adoption order in respect of S, which came he before Mr Justice Peter Jackson on 13 November 2015.

Due to the nature of the proceedings, representatives of the Social Security Department of Bulgaria were present at court. Through them the court learned, only after the hearing at commenced, that the mother had been located in Bulgaria and had been spoken to by child protection workers. They felt that she gave inconsistent accounts as to why contact with S had stopped and why she had ceased engaging with the proceedings. The authorities reported that the mother opposed the proposal for S to be adopted, but doubted both her motivation and capacity to care for S.

The Bulgarian Social Security Department informed the court that if S were sent to Bulgaria she would be placed in foster care or a children's home; they said that the priority should be for S to be returned to her country of origin.

In considering whether to make an adoption order the court reminded itself that S's welfare throughout her life was the paramount consideration. In considering the factors that must be taken into account as at s.1 ACA 2002, the court noted, inter alia, that whilst S had a different ethnic and cultural background from that of the applicants, the applicants had arrived in the UK in 2008 from their home in the horn of Africa, and so shared with S a mixed background of relocation. The court also noted that S had no real relationship with members of her family of origin (her mother being unable to care and there being no other possible family members), and that she had no real relationship with her country of origin having been brought up in London.

The court held that it was inconceivable to send S to Bulgaria where she would likely end up in a foster home if it meant removing her from her from what she knew as her home and her family. The court concluded that it was imperative that S became a full member of a family without further delay and that it was not appropriate for her to remain a 'temporary visitor' to a family whilst waiting to see if her mother would mature (the likelihood of which was considered to be small). The court had no hesitation in granting the adoption order, dispensing with the mother's consent in the process, and making no orders for post-adoption contact.

The court praised the 'exemplary' response from the Bulgarian authorities to the court's request for information that allowed the court to come to an assured conclusion about what is in S's welfare interest throughout her life.

Summary by Esther Lieu, barrister, 3PB

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the individual family members concerned must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

No. 15/47
Neutral Citation Number: [2015] EWHC 3921 (Fam)

Royal Courts of Justice
Friday, 13th November 2015


(In Private)
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 Re: K
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MS. HYDE  appeared on behalf of the London Borough of Enfield.

MR. T. KRASTEV  and  MS. M. ANGELIEVA-KOLOVA  attended from the Bulgarian Embassy.

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J U D G M E N T: Re K (Adoption of Foreign National)

1 This is an application for an adoption order.  It was made in July 2015 by a married couple, to whom I will refer as "the applicants", in respect of a little girl named S, who was born on 6th November 2012 and is now three years of age.  

2 At this hearing the applicants have appeared.  Also present to assist the court is the local authority who placed S with the applicants; they are represented by Ms. Hyde.  S's social worker since November 2013, Ms. M is also present.

3 S is a child with a Bulgarian mother.  She is a Bulgarian child, regardless of whether her father, whose identity is unknown, holds that nationality or not.  As a result, these proceedings were notified to the Bulgarian Embassy in London and the Embassy has been represented here today by Mr. Todor Krastev and Mrs. Maria Angelieva-Kolova.  They have attended to observe the manner of these proceedings involving, as they do, a Bulgarian national child.  I have also briefly heard from Mr. Krastev and I will return to that.

4 Before going into any detail, the overall situation is that S has been with the applicants since she was about eight months old.  I have received a detailed report from the local authority social workers about S and about the applicants themselves.  It is very clear from that report that S went into the applicants' family home as a baby at great risk.  She was at a very sensitive age.  She had had no consistent upbringing and had she not found a good home her development would have been greatly damaged.  As it is, she is described as a child who is thriving.
5 There are, in practice, no alternative arrangements that could possibly meet S's needs.  It would be, to my mind, unthinkable for her to be separated from the couple that she knows as her parents and their much older children, who she knows as her brothers.
6 S's mother is Ms RO.  She was born in 1996 and she is a member of the Roma community.  Information gathered in England and provided from Bulgaria suggests that she was born into a family that engages in criminal activity and she, herself, cannot have had much of an upbringing.  At the age of 14 she was taken into police protection.  She then became pregnant with S and was placed by the Bulgarian authorities in a mother and baby unit from which she absconded before S was born, finding her way with, perhaps, other family members to England.  The suspicion is that she was sent here as part of a pickpocketing gang, but at all events S was born on 5th November, as I have described.  But, perhaps not surprisingly, her mother showed herself to be unable to meet her own needs as well as her child's and in June 2013 she left England.  That was on 24th June and on 1st July S was taken into police protection and placed by the local authority for a short period before finding her home with the applicants on 31st July.
7 Care proceedings were naturally brought and I am satisfied that considerable efforts were made by the social worker, Ms. M, to try and keep in touch with the mother.  Of course the local authority and, indeed, the court understood that she was herself a vulnerable person and needed assistance to try to be able to look after her daughter but it became quite impossible for the local authority to engage with the mother, who appears to have been travelling around in Europe, was very difficult to contact by telephone, would say that she was coming back but then did not.  In fact, the last time that the English authorities had any contact was a telephone call between Ms. M and the mother on 14th May 2014.  The mother said she was coming to a court hearing but did not do so.  After that, all calls to the numbers known for the mother were left unanswered.
8 The local authority accordingly issued an application for a placement order, which is an order allowing a local authority that has a child in its care to find an adoptive family.  I considered the matter in some detail and made those orders on 3rd November 2014.  On 27th January 2015, the local authority matched S with the applicants, meaning that they approved the applicants as being suitable adoptive parents.
9 One aspect of the matter that deserves mention, given the international dimensions of this case, is the background of the applicants.  They, as I say, are a married couple, married, I believe, 17 years ago or thereabouts, and they came to the United Kingdom in 2008 with their own children.  They originate in the horn of Africa and are a black couple.  S, of course, is of Bulgarian Roma extraction.  One relevant factor in considering a child's best interests in the context of adoption is to consider her background, heritage, and culture.  It is, of course, not the only factor.
10 In this case there are, it seems to me, despite the cultural and racial differences between S and the applicants, some important similarities.  The applicants are practising Christians and that is a relevant feature tying S to her cultural background.  The applicants also clearly have had anything but a one-country existence.  They have moved across the world, finding their final home in England.  They have been through important and no doubt at times difficult experiences in doing so, having come from a country of origin which has itself been through widely publicised difficulties in recent years.  In these circumstances my perception is that the outward differences between S and her adoptive parents are, in fact, superficial, that the commonality of experience is much deeper, and that the experience of life that these applicants have had is likely to serve S well in the future in helping her to understand the circumstances in which she came, surrounded by such difficulties, to be born in a country that was not her country of origin.
11 When considering an application for adoption the court must regard the child's welfare throughout her life as being the paramount consideration.  There is a list of factors that must be taken into account and they appear in s.1 of the Adoption and Children Act 2002.
12 One of those factors to which I have been referring is the likely effect on the child throughout her life of having ceased to be a member of her original family and becoming an adopted person.  Where there is adoption across cultural, international, racial boundaries that is a significant factor and I have given it the necessary consideration.
13 Other factors are the relationships that the child has with members of her family of origin.  In this case, those relationships do not weigh heavily.  It is clear that S was born to a mother who was simply not capable of giving her the care that she needed.  That is not a criticism of the mother or a complaint against her, it is a reflection of the sad circumstances that no doubt she experienced in her own childhood.  But I have to consider whether in the circumstances these proceedings should be held up in order to engage with the mother after such a long period of silence.
14 In this regard, I am greatly assisted by information provided from the Republic of Bulgaria by its Social Security Department and conveyed via the Ministry of Justice and the Embassy in London.  This information which came to the court's attention only yesterday is that the mother has now been located and that on 2nd or 3rd November, so about ten days ago, she entered Bulgaria, believed to be travelling from the Netherlands with her husband.  They, themselves, have a child born in January, who they are not looking after consistently themselves but placing with relatives in Bulgaria.  They were found and spoken to, in the mother's case on 5th November.  The mother had no identity documents.  She said that she had not had contact with S since the middle of 2013 because of lack of money.  She gave what is described as a "contradictory version" about the reasons for lack of contact.  She described plans to travel to this country to find S and take her into her care at the beginning of next year, after her son's first birthday.  She disagrees with the proposal for S to be adopted.
15 The child protection workers record the opinion that the mother does not have feelings of affection for S but said what was what she thought would be expected of her.  The conversation about S was described as "inconveniencing her", her answers were very laconic and she was looking for prompts from her relatives.  The conclusion of the Child Protection Team was that the mother does not have the capacity to care for her daughter.  Nor does her own mother, who is currently serving a prison sentence that expires in 2017.  There are no other family members that I considered to be possible carers.
16 The Bulgarian Social Security Department also helpfully indicates what would happen if the court was to return S to Bulgaria.  I say "return", in reality it would be "sent" to Bulgaria.  In those circumstances an assessment would take place with S being placed either in foster care or in a children's home.  It  might, as a last resort, be adoption.  It is said by Mr. Ivanov, the Executive Director at the Ministry of Work and Social Policy Social Security Agency that the priority, in his opinion, is for S to be returned to her country of origin.
17 The first thing that I would like to say is that the response of the Bulgarian authorities to this court's request for information has, in my view, been exemplary.  The amount of information that it has been possible to gather in a short period of time has provided an up-to-date vision of the situation of S's Bulgarian relatives to place alongside the information that this court already had before contact was lost.  It allows the court to come to an assured conclusion about what is in S's welfare interest throughout her life.
18 The making of an adoption order, particularly in circumstances of this sort, is a profound decision.  It transfers a child from membership of one family into membership of another family, another dynasty, another future.  There is no more important or deep form of order that can be made.  It can only be made, in reality, where there is no alternative that meets the child's needs.
19 The first thing to say is that at S's age nothing short of being a full member of a family is, in my opinion, good enough.  It is not possible for her to remain a temporary visitor to a family in case her mother should mature, in case matters change within her birth family.  The likelihood of that happening against this background is very small indeed and what S needs is to have a family of her own and a family that works.  Happily, she has found that family and it would, to my mind, be unthinkable to remove her from the care of the applicants in order for her situation to be assessed from the country of her nationality when the overwhelming likelihood there is that she could not be placed with any branch of her birth family.  S has been brought up in London.  She has no experience of life in Bulgaria.  She could not understand what possible reason there would be for moving her from her home.  She could not understand what people said to her, apart from anything else; there would be no explanation and no way of conveying any explanation.
20 There is also no value to S in having continuing contact with her birth family.  Their circumstances are obviously too difficult to allow them to be dependable.  I do not consider that the proceedings should be held up to allow the mother the opportunity to oppose them.  Sadly, there is nothing that she could possibly say that would lead to any different conclusion.  In fact, to postpone the making of the inevitable adoption order would, in my way of thinking, be unkind to this young mother as well in giving her some reason to think that this was not going to be the final outcome.
21 I am therefore driven to the conclusion that adoption is not only in S's best interests, but that it is the only possible outcome that meets her needs and that is capable of promoting her welfare throughout her life.
22 I dispense with service of these proceedings on the mother, her whereabouts having become known virtually on the eve of this final hearing. 

23 I dispense with the mother's consent to the making of an adoption order on the statutory ground that the welfare of S requires the order to be made.
24 I express once again my thanks and appreciation to the authorities of the Republic of Bulgaria for their assistance in this matter, which has materially contributed to the promotion of S's best interests.  Although she cannot live in the country of her nationality, her country of nationality has at least done everything it can to make sure that she has the opportunities in life to which she is entitled.