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X (Revocations of Testamentary Guardianship) [2020] EWFC 33

Case concerning prospective application for intercountry adoption under the 1993 Hague Convention; the consent given by a testamentary guardian to his own adoption application remained valid.

The case concerned issues that arose relating to a prospective application for an adoption order under the 1993 Hague Convention.

The proposed adopter was Mr X, an American citizen, who was habitually resident in the USA. He was currently in the UK and was the guardian caring for his 8 year old orphaned niece, Z, who was a British citizen.

Mr X applied pursuant to section 6(7) Children Act 1989 to revoke a testamentary guardianship order and for Z to be made a ward of court.

Z was removed from her birth parents and Mr X's sister, Ms Y, adopted Z when she was 2 years old. Ms Y tragically died when Z was 3 years old. In line with Ms Y's wishes, a 2015 order appointed both Mr X and Ms W as the joint guardians for Z. Mr X intended to permanently care for Z in the USA and this plan could only be achieved via a Hague adoption. This was supported by the whole family, in particular Ms W.

Mr X had been assessed and approved as a suitable adopter by a Texas social worker in accordance with Article 15. The LA in the UK was in the process of completing the Article 16 report and all indications were it would be positive.

Mr X's application to revoke the testamentary guardianship order made in 2015 was therefore made on two bases:

1. By giving consent to the adoption under Article 4, Mr X was giving consent to his own application to adopt and thereby his consent risked being tainted by that conflict, and did not provide the usual safeguards.

2. By remaining a testamentary guardian, he risked not meeting the requirements under Article 17 that Z should not be 'entrusted to prospective adoptive parents' until the requirements under Article 17 are met.

Mr X's preferred outcome was for Z to be made a ward of court, with care and control to Mr X and Ms W. It would then be the court as opposed to Mr X whose consent was required for the adoption application.

Theis J concluded that in 2015 when the guardianship order was made there was no evidence that adoption was being considered. The Convention adoption process has a number of built in safeguards. If it were a domestic adoption Mr X and Ms W's consent would still be required, and subject to the usual safeguards it would not be considered to be invalid by virtue of the fact one or both of them were making the adoption application. There was nothing in the Convention that undermined the validity of the consents to adoption that had been given by Mr X and Ms W. This was supported by the comprehensive and entirely positive assessment undertaken of Mr X regarding his suitability to adopt Z. In those circumstances, whilst understanding the concern Mr X had about the consent he had given, those concerns were not shared by the court. An additional safeguard in this case was the position of Ms W.

Theis J accepted the submissions that 'entrustment' in the domestic context applied to parental responsibility granted or acquired with a view to adoption, which was not the position here as the granting of the testamentary guardianship order in 2015 was at a time when adoption was not considered as an option. 'Prospective adoptive parent' was consistent with the process within the Convention when a person initiated the adoptive process, which in practice would be the request for an Article 15 assessment. During the 'entrustment window' which was the period between the time at which the prospective adopter initiated the adoption process by requesting an Article 15 assessment, and the time at which the state of origin and the receiving state agreed that the adoption may proceed, Article 17 prohibited any changes in the status and relationship between the child and the prospective adoptive parent. It did not prevent the prospective adoptive parent caring for the child during this window.

The court therefore refused the application to revoke the testamentary guardianship order.

Summary by Victoria Flowers, barrister, Harcourt Chambers

You can read the full judgment of X (Revocations of Testamentary Guardianship) [2020] EWFC 33 on BAILII