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ASB & KBS v MQS [2009] EWHC 2491 (Fam)

Judgment arising from adoption proceedings where a resident Pakistani couple were seeking to adopt one of the wife’s brother’s sons. Application allowed.

The applicant couple had been married since 1966 but were unable to conceive. They visited the wife’s family in Pakistan regularly and in 1995 asked whether they could adopt one of the brother’s children (M), primarily for cultural reasons, as children are regarded as necessary to look after parents in later life. In 2002 that request was formalised in Pakistan by affidavit. In 2007 M visited England, aged 15, for what the applicants argued was a visit, but subsequent discussions led to him staying in England with a view to adoption.

In this application, the Home Office argued that i) the applicants required leave to apply; ii) the adoption should not be granted as the applicants had been party to deception concerning the true purpose of M’s visit; and iii) any welfare advantages could not override that deceit. Bennett J reviews the relevant case law and rules before concluding that i) leave was required under the 2002 Act (which was granted); ii) the applicant had not been party to any deceit; and iii) the welfare of the child throughout his life meant that the adoption should be allowed.

Neutral Citation Number: [2009] EWHC 2491 (Fam)
Case No: FD08A00398
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13/10/2009
Before :

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Between :

ASB and KBS (First and Second Applicants)

MQS (through his Children’s Guardian Pauline Bennett) (Respondent)

Secretary of State for the Home Department (Intervener)

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Miss Birinder Kang (instructed by Alexander & Partners) for the Applicants
Miss Nadine Finch (instructed by Goodman Ray Solicitors) for the Respondent
Mr Alexander Ruck Keene (instructed by the Treasury Solicitor) for the Intervener

Hearing dates: 1-2 October 2009
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This judgment is being handed down in private on 13 October 2009. It consists of 13 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Mr Justice Bennett :
1. The applicants, ASB and KBS, who are husband and wife, applied on 13 September 2008 to adopt M. M is now 17 years old having been born on 9 February 1992. The applicants are British citizens who come from Pakistan. M is a Pakistani national.

2. M is the son of MSB and his wife. MSB lives in Spain. His wife and their children live in Pakistan. Nevertheless their relationship as a married couple continues. MSB is the brother of KBS. MSB and his wife consent to the adoption of M by the applicants.

3. On 23 June 2007 M’s mother brought M, then aged 15 years, and his younger brother to England from Pakistan. M was granted a visitor’s visa for 6 months following his successful appeal against the refusal of the Entry Clearance Officer in Pakistan. The purpose of M’s visit was stated on his visa application form to be a family visit. During M’s visit to England his mother and brother returned to Pakistan leaving him behind.

4. On 22 December 2007 M’s leave as a visitor expired. On 8 November ASB applied for M’s visa to be extended. On 13 December the SSHD refused the application as in any event his visa was not capable of being extended. No further steps were taken to regularise M’s immigration status. He has remained in England since 23 June 2007. He has sworn a statement of 2 September 2009 in which he expresses his heartfelt wish to remain living in the UK and to be adopted by the applicants. It is common ground that the effect of an adoption order would be to confer on M British citizenship by virtue of s. 1(5) of the British Nationality Act, 1981.

5. Both the local authority – see Annex A at E 10 et seq – and M’s guardian support the making of an adoption order in favour of the applicants. By order of 14 July 2009 the SSHD was granted leave to intervene. He opposes the grant of an adoption order. First, it is submitted that the applicants need leave to bring such an application pursuant to s. 42 (1)(b), (5), (6), and (7) of the Adoption and Children Act 2002 (“the 2002 Act”), which should be refused. Second, the application for adoption should not be granted because the applicants were party to deceiving the immigration authorities in or before June 2007 as to the purpose of M coming to the UK, which, it is submitted, was not for a visit but to facilitate M’s adoption in the UK. Third, whatever welfare advantages there may be to M being adopted they should not override the deceit practised in June 2007.

6. I turn to the facts. ASB and KBS are aged 63 and 60 years respectively. In 1965 and 1967 they moved to England from Pakistan respectively. In 1966 they were married. They have known for a long time that they cannot conceive a child. KBS has undergone extensive medical treatment and investigation, all sadly to no avail. By 1994/5 they knew for sure that KBS could not conceive.

7. MSB and his wife have 4 children, 3 boys and 1 girl. The applicants regularly visited Pakistan in the past and stayed with them. They watched the children grow up and became fond of them.

8. On a visit to Pakistan in 1995 KBS talked to her mother. The applicants wanted to adopt M. A family discussion took place. MSB and his wife wholeheartedly agreed to M being adopted. The rationale for this is explained in para 6 of ASB’s statement of 23 January 2009:-“6. In the traditional society where I come from, it is considered important to have children. They look after their parents in their old age, and are a comfort and support to their parents. The children also know it is a duty that they have, to be responsible for their parents welfare, to look after their parents, even though leading their own independent lives. The children are taught that they will eventually have a responsibility for their parents, and that this is because of the care hat their parents have given them when they are young. This part of the teaching in the Koran, the responsibility for looking after your parents (sic). I know a number of childless parents in Pakistan who have adopted relatives’ children for that purpose, and it is considered quite an acceptable thing to do.”

9. Thereafter the applicants considered that their relationship with M was different. In January 2002 ASB swore an affidavit in Pakistan in the presence of M’s birth parents – see C 7 – that he accepted M as his son and would treat him as such. The affidavit is headed “Affidavit regarding Adoption Deed”. It is uncontroversial in the instant case that adoption is not a concept known to Pakistani law. It seems that what happened in 2002 is that the applicants became the beneficiaries of a guardianship order.

10. The applicants have materially assisted with M’s education whilst he was living in Pakistan. From the age of 5 or 6 years they paid for M to be educated privately. They sent presents of clothes and shoes. They regularly sent money, and visited and took M on trips around Pakistan.

11. I am satisfied upon the evidence that before and after the formal events of 2002 M more and more regarded the applicants as his father and mother. He became more and more emotionally bonded with them. When the applicants were in England they regularly spoke with M on the telephone.

12. Mr. Ruck Keene, counsel for the SSHD, put to the applicants in their evidence that they had arranged with M’s parents, prior to his coming to England in June 2007, for M to be brought to England to be adopted by them, that they well knew that M was coming to England to be adopted by them, and that the “visitor” visa was applied for by M’s mother and/or maternal uncle because the applicants knew that the visa would not be granted if the true position was disclosed. The applicants strongly denied such assertions.

13. The applicants’ case is that they had nothing to do with the application made in Pakistan for a visa for M. That was undertaken by M’s mother and/or maternal uncle. They understood that M had only come for a visit with his mother and brother. When they came in 2007 neither applicant suspected that the reason why M was brought here (if such was the case) was for him to remain in England to be adopted by the applicants.

14. After M’s arrival in June 2007 I understand that M, his mother and brother, went to stay with the maternal uncle, who had sponsored M’s trip and who was instrumental in obtaining M’s visa. In September 2007 M started at Copeland school where he has been educated to date.

15. At some point after MSB arrived in the United Kingdom there was a family discussion involving the applicants about M staying in England. It was agreed that ultimately it would be left to M to decide. ASB told me that a decision was taken by him and KBS to adopt M after M had indicated that he wanted to stay with them. ASB told me that M asked if he could remain in England, that he asked M if he wanted to live with them, to which M replied that he did. ASB then informed the local authority. KBS’s evidence was to like effect.

16. In August 2007 – see E 22 – it seems that ASB told the local authority of M’s “adoption” in Pakistan and entry into the UK. He was advised to contact the Home Office. In December 2007 ASB asked the local authority to undertake a home study. He was told to seek guidance from the Home Office as to M’s status before a home study could begin and that more information would be needed from Pakistan, from the Home Office and from Pakistan.

17. Meanwhile ASB had applied to extend M’s visa. In early 2008 he spoke to the Home Office to chase and was told that M’s passport had been returned; but it never arrived. ASB says that the Home Office never told him that the extension had been refused.

18. ASB then contacted a solicitor. In June 2008 ASB told the local authority of the intention to apply to adopt M.

19. I am satisfied that M is progressing well at school. In the summer of 2009 he sat 11 GCSE subjects and obtained 4 As, 5 Bs, and 2 Cs. He has embarked on “A” levels in psychology, chemistry, physics, and biology. He is keen to qualify as a doctor.

20. The family, and the community in which M and the applicants live, know M as the applicants’ son. He is introduced as their son. M is well settled in this country educationally, emotionally, and psychologically. Ms. Hegarty, a senior adoption social worker with the local authority, warmly supports M’s adoption. She says that it is the only appropriate order (see E 38) as it will give him the security he requires. Ms. Pauline Bennett, M’s guardian, speaks in her report of 29 May 2009 of the applicants’ high degree of commitment and motivation in caring for M. Their love, affection and care of M are “completely evident”. M is thriving with them. They, in her view, have exercised genuine parental authority. Adoption would be of significant benefit to M both now and for the rest of his life. If he is not adopted all the benefits that have accrued, and will accrue, to M will be lost which would have “an extremely detrimental effect” on M (see C 331 para 8).

21. As is apparent I saw and heard the applicants give evidence. When cross-examined by Mr. Ruck Keene, ASB was asked about several matters arising out of the documents. First, a passage at para 3 of the guardian’s position statement of 30 September 2009 (C 29) was put to him, particularly the penultimate sentence, which  could be said to give the impression that the  applicants had told the guardian that M was being brought to England to be adopted by them. ASB told me that that was not correct. Ms. Bennett told me that at all times during her lengthy enquiries the applicants has always told her that they understood that M was coming to England purely for a visit. In my judgment this passage in her position statement refers to what happened after M came to England and is not referable to the applicants’ state of mind, motives, or intentions at the time of M’s arrival in England.

22. Second, in M’s statement at para 6 he says:-

“The purpose of this visit was to see how I would get on in the UK and whether I liked it.”

The applicants both told me that they were unaware of that. Both said that they understood he was coming only for a visit.

23. Third, in Ms. Hegarty’s Annex A report she, in answer to (j) (see E 13), gave some background and said in the final sentence:-

“He entered the UK for the purposes of being adopted on 23.6.07.”

Mr. Ruck Keene put this to the applicants upon the basis that such information could only have come from them. Both said that the above sentence was wrong and that M came for a visit.

24. Ms. Hegarty was not called as a witness by any party. In any event she was unable to attend, so I was told. No party asked for the case to be adjourned so that she could give evidence. Furthermore, I note from E7 that Ms. Hegarty strongly suggests that the applicants themselves “had not approached an Entry Clearance Officer before leaving Pakistan with M to ensure that they knew the purpose of the trip to the UK was to adopt M.” But I have heard no suggestion that it was the applicants who actually brought M to England. Indeed there was no evidence to the effect that they had. Thus it would seem that Ms. Hegarty has made a mistake in that respect. She says that she obtained such information from the applicants in discussion with them prior to the directions’ hearing of 18 November 2008. ASB told me that there was no such discussion.

25. Fourth, at para 6 on MSB’s statement (see C 24) he said:-

“She (i.e. M’s mother) came over with M in 2007 and the intention was that she would see where M would be living and also that M would be happy.”

ASB was not asked about that. KBS, who was, said she knew nothing about that and in any event it was wrong.  MSB did not give evidence. No party, so far as I am aware, requested his attendance to give evidence.

26. I was impressed by the evidence of both applicants. In my judgment both were open, honest, and sincere. They dealt with the points put to them by Mr. Ruck Keene. I accept their evidence that they believed that M had come over to visit England in June 2007 and that any question of M staying on was only raised subsequently. They knew nothing of the application for a visitor’s visa. Thereafter the applicants told the local authority of their wish to adopt. They did not know that M’s application to extend his visa had been refused because M’s passport was not returned promptly at the end of December. Indeed it took some time before the applicants knew of the SSHD’s refusal decision of December 2007.

27. Mr. Ruck Keene asked me to find that M’s parents deceived the Home Office in 2007. If they had declared that the true reason why M was coming to England was adoption by the applicants, the visa would never have been granted. In my judgment it is more probable than not that MSB, his wife and/or M’s maternal uncle did intend that M should be brought to England to live with the applicants permanently. If such had been declared to the Entry Clearance Officer the visitor’s visa would not have been granted. So it is likely that the immigration authorities were deceived by one or both of M’s parents and/or his maternal uncle. But I wish to emphasise that in my judgment such deception was totally unknown to the applicants and that they played no part in it.

28. Where then in law do my findings of fact leave the application to adopt M? To what extent, if any, is the authority of the decision of the House of Lords in In Re B (A Minor) (Adoption Order: Nationality) [1999] 2 A.C. 136 modified by the 2002 Act? This latter issue is raised by Mr. Ruck Keene.

29. In that case a 14 year old child and her mother, both Jamaican, visited the mother’s parents in the UK and were given leave to enter for 6 months. When the mother returned to Jamaica the child remained with her grandparents. The mother consented to the child being adopted by them. The SSHD intervened and argued that the adoption was being used as a means of acquiring the right of abode in the UK. The judge held that, in accordance with s. 6 of the Adoption Act, 1976 he had to give “first consideration” to the child’s welfare throughout her childhood including the welfare benefits which flowed from the acquisition of the right of abode in the UK and that those benefits warranted the making of the adoption order. The Court of Appeal allowed the SSHD’s appeal, holding that it was necessary to distinguish the benefits of adoption from those of acquiring a right of abode and that there was no advantage to the child apart from those which would flow from a right of abode. The House of Lords reversed the Court of Appeal and restored the judge’s order.

30. At page 141 Lord Hoffman, with whose speech the other Law Lords agreed, said:-

“My Lords, the issue in this appeal is therefore a very clear one. Mr. Underwood, in his printed case, stated the proposition which he advanced on behalf of the Home Secretary as follows:

“The court should ignore benefits which would result solely from [a] change in immigration status when determining whether the child’s welfare calls for adoption.”

“This was the proposition accepted by the Court of Appeal. But in my opinion it is contrary to the express terms of section 6 of the Act of 1976 and not supported by authority.”

Section 6 requires the judge to have regard to “all the circumstances” and to treat the welfare of the child “throughout his childhood” as the first consideration. I do not see how, consistently with this language, the court could simply have ignored the considerable benefits which would accrued to T. during the remainder of the childhood. That the order would enable her to enjoy those benefits was a fact which the court had to take into account. No doubt the views of the Home Office on immigration policy were also a circumstance which the court was entitled to take into account, although it is not easy to see what weight they could be given. Parliament has not provided, as I suppose it might have done, that the adoption of a non-British child should require the consent of the Home Secretary. On the contrary, it has provided that the making of an adoption order automatically takes the child out of the reach of the Home Secretary’s powers of immigration control. The decision whether to make such an order is entirely one for the judge in accordance with the provisions of section 6. In cases in which it appears to the judge that adoption would confer real benefits upon the child during its childhood, it is very unlikely that general considerations of “maintaining an effective and consistent immigration policy” could justify the refusal of an order. The two kinds of consideration are hardly commensurable so as to be capable of being weighed in the balance against each other.

 The cases upon which Mr. Underwood relied do not go nearly far enough to support the exclusionary rule which he was advancing. They appear to me to justify two more modest propositions. The first is that the purpose of an adoption is, as section 12 of the Act says, to give parental responsibility for a child to the adopters. The court will therefore not make an adoption order when the adopters do not intend to exercise any parental authority but merely wish to assist the child to acquire a right of abode. This what Cross J. In Re A. (An infant) [1963] 1 W.L.R. 231, 236 called an “accommodation” adoption.  The second proposition is that the court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. In such a case there are no welfare benefits during childhood to constitute the “first consideration”. The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority.”

31. Section 1 (1) to (6) of the 2002 Act provides as follows:-

“1 Considerations applying to the exercise of powers

(1) This section applies whenever a court…is coming to a decision relating to the adoption of a child.

(2) The paramount consideration of the court… must be the child’s welfare, throughout his life.

(3) The court… must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.

(4) The court…. must have regard to the following matters (among others)—

(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),

(b) the child’s particular needs,

(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d) the child’s age, sex, background and any of the child’s characteristics which the court… considers relevant,

(e) any harm (within the meaning of the Children Act 1989 (c 41)) which the child has suffered or is at risk of suffering,

(f) the relationship which the child has with relatives, and with any other person in relation to whom the court… considers the relationship to be relevant, including—

(i) the likelihood of any relationship continuing and the value of its so doing,
(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,
(iii) he wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

(5) In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.

(6) The court… must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.”

32. Two fundamental changes in s. 1 of the 2002 Act from s. 6 of the 1976 Act must here be noted. First, whereas under the 1976 Act the child’s welfare was the “first consideration” for the court, under the 2002 Act the child’s welfare is the court’s “paramount consideration”. Second, the child’s welfare must be considered “throughout his life” not only his childhood as per the 1976 Act.

33. Mr. Ruck Keene accepted that In Re B has to be read in the light of the 2002 Act, in particular the two changes from the 1976 Act to which I have referred. He submitted, however, that the first of Lord Hoffman’s “two more modest propositions” (see p. 141 G and H) survived the 2002 Act. This was because the court cannot grant, consistent with the terms of s. 1 of the 2002 Act, an adoption order where adopters do not intend to exercise parental authority but merely wish to assist the child to acquire the right of abode in the UK. For, as it was expressed by Thorpe L.J. in Re H (Adoption: Non-patrial) [1996] 2 F.L.R. 187 (cited in Re B and not in any way disapproved) at page 193;-

“A misuse of the right to apply for adoption as a device to circumvent immigration controls will always be fatal to an adoption application. Quite apart from immigration considerations, adults exposed in that way are likely to have forfeited the confidence in their maturity and responsibility which the judge must hold before committing them to a child on such an irrevocable basis.” 

34. Peter Gibson L.J. said at page 193:-

“It is plainly right that the court should have regard to the nationality and immigration consequences of any order and should be on its guard lest the adoption proceedings are but a device to evade the immigration procedures and policy.”

35. In my judgment it remains the court’s obligation post the 2002 Act to be on its guard in adoption proceedings against misuse of such proceedings. Misuse of adoption proceedings to gain a right of abode (as opposed to exercising parental authority) is most unlikely to be in the child’s welfare as well as undermining immigration policies and procedures. Paragraph 4 of Adoptions with a Foreign Element Regulations 2005 (S.I. 2005/393), made pursuant to s. 83 of the 2002 Act, demonstrate that the procedure for the adoption of a foreign child by applicants in the UK may be long, perhaps arduous, and uncertain of success. The temptation in such cases to pull the wool over the eyes of the immigration authorities may be well nigh irresistible. If the regulations are not complied with the offender may be guilty of a criminal offence – see s. 83 (7) of the 2002 Act.  The procedural requirements include (i) the prospective adopter receiving notification that the appropriate certificate has been issued by the Secretary of State confirming him as eligible and suitable to be an adoptive parent and that the child will be authorised to enter and reside permanently in the UK, (ii) the prospective adopter visiting the child in the state of origin, (iii) before visiting the child notifying the adoption agency of certain matters, (iv) after the visit confirming to the adoption agency the visit, providing any further information requested, and confirming the child’s expected date of entry into the UK, and (v) accompanying the child on entering the UK and thereafter giving notice to the adoption agency of the child’s entry and of the intention to apply for an adoption order.

36. Para 316 A of the Immigration Rules sets out the requirements in respect of limited leave to enter the UK with a view to settlement as a child for adoption. So far as the instant case is concerned, the applicants would have been in difficulty in satisfying the criteria that M was being adopted due to his parents inability to care for him and that M had lost or broken or did intend to lose or break his ties with his family of origin.

37. Ms Kang, counsel for the applicants, did not seek to persuade me to reject Mr. Ruck Keene’s central submission that the first of Lord Hoffman’s modest propositions survived the 2002 Act. Indeed she conceded that it must.

38. In my judgment that was a correct concession. Under the 2002 Act the child’s welfare throughout his life is the court’s paramount consideration. If applicants for an adoption order use the court’s procedures not to exercise parental authority in respect of the child but to assist him to acquire British nationality, such action is most unlikely to (indeed I would go so far as to say, cannot) be in the child’s best interests. For the proposed adopters would have proved to have been irresponsible, indeed thoroughly devious if not dishonest and thus not acting in the child’s best interests in a fundamental respect. Thus such behaviour ought to preclude the child being committed, indeed committed irrevocably, by adoption to the care of such applicants. I accept the submission of Mr. Ruck Keene that s. 1 of the 2002 Act is not an exhaustive catalogue of considerations for the court. As Munby J. (as he then was) said at para 71 of his judgment in Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam), [2003] 2 F.L.R. 921:-

“The court must be alert to the possibility in cases such as this that the local authority and the court are being used by desperate parents for ulterior purposes. Just as every asylum case demands anxious scrutiny, so does every care case. But the court must be alert that it does not allow itself to become complicit in the abuse of its own process by failed asylum seekers who may see in the processes of family law a solution to their problems not available to them within the immigration system or in the Administrative Court.”

39. That case did not involve adoption, but I see no reason why the sentiment of this dicta should not be applied equally to applications for adoption.

40. I have rejected Mr. Ruck Keene’s submission that the applicants were part of the deceit perpetrated by M’s parents and/or maternal uncle on the Home Office in or before June 2007. His secondary position is that the applicants, by making the application for adoption substantially after the time when M entered the UK, have colluded in the breach of immigration law by his parents and/or maternal uncle. He submitted that the applicants have no intention of exercising parental authority and are motivated solely by getting M British nationality. I wholly reject these submissions. I am abundantly satisfied from the applicants’ evidence and by their love of, and devotion to, M, shown by their relationship with him since 1995, that they have every intention of exercising parental authority, and I am confident will continue to do so, in respect of M.

41. Mr Ruck Keene’s tertiary position is as follows. If I reject, which I have, his first and secondary positions, then M is an overstayer, is close to his majority, is still close to his birth family, and can be returned to Pakistan without impact on his welfare. He conceded that M’s rights under Article 8 of the European Convention on Human Rights would be interfered with. Nevertheless the refusal of an adoption order leading to his likely return to Pakistan would be a proportionate interference and thus lawful.

42. I must take into account all the factors under s. 1 of the 2002 Act. I have said that the applicants will exercise parental authority. M is well and happily settled in England. There is a genuine relationship between M and the applicants of son and parents. M sees them as his father and mother. They see him as their son and the child they have longed for. M fervently wishes to be adopted by them; he is 17 and his wishes and feelings are very important. He is doing well at school and has a network of friends. The applicants can assist him to achieve his educational and career goals and can provide him with continuity of religious and cultural norms. He will be adopted into a family that shares the same background, history, religion and cultural practices as his birth family. He will continue to have meaningful contact with his extended and birth families. I agree with the guardian that there is a real risk of a severe detrimental effect on M if the adoption order is refused thereby leading to his likely return to Pakistan. It would fracture his relationship with the applicants and most likely lead to instability and insecurity in his life now and in the future. In my judgment there is no order other than adoption that I can make that will secure M’s best interests throughout his life. So, in conclusion, I have no doubts that adoption by the applicants of M will confer real benefits on him throughout his life.

43. I do not ignore the fact that M is an overstayer and thus in breach of the immigration rules. But if this was a submission by Mr. Ruck Keene that because effective and consistent immigration policy should be maintained resulting in the dismissal of the application to adopt, then in my judgment immigration considerations cannot, in the circumstances of this case as I have found them to be, justify the refusal of the order the applicants seek. The weight to be given to the breach of immigration rules perpetrated by M’s parents and/or maternal uncle must be small.

44. There remains the issue whether it is necessary for the applicants to seek the leave of the court to make an adoption application and, if it is, whether it should be granted or refused. Section 42 (5) and (6) of the 2002 Act provide:-

“(5) In any other case, the condition is that the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them for not less than three years (whether continuous or not) during the period of give years preceding the application.

(6) But subsections … (5) do not prevent an application being made if the court gives leave to make it.”

45. The Court of Appeal in Re A; Coventry County Council v CC and A [2007] EWCA Civ 1383, [2008] 1 F.L.R. 959 gave helpful guidance. In his judgment Wilson L.J., with whom Ward and Moore – Bick L.JJ. agreed, said at para 10 :-

 “[10]  The researches of counsel do not reveal any reported decision referable to the grant of leave to apply  for an adoption order under s 42 (6) of the Act. But counsel were in agreement at the hearing before the judges as to the proper approach to any such application; and the judge accepted and endorsed the approach which they commended to him. Equally, before this court, counsel remain in agreement as to it; and, in turn, I consider that we should accept and endorse it. For, notwithstanding the absence of a decision referable to the grant of leave under s 42 (6), there is a recent reported decision of this referable to the grant of leave to apply for revocation of a placement order under s 24 (2) of the Act. It is M v Warwickshire County Council [2007] EWCA 1084, [2008] 1 FLR 1093. I would accept and hold that the legal principles relevant to the exercise of the discretion whether to grant leave pursuant to each of the subsections are identical. Thus the welfare of the child is a relevant consideration but, by virtue of s 1(7) of the Act, is not the paramount consideration: see paras [22] and [24] of my judgment in Re M. Another relevant consideration is whether the proposed application has a real prospect of success: see para [29] of that judgment. Indeed I there observed:-

“My view is that the requisite analysis of the prospect of the prospect of success will almost always include the requisite analysis of the welfare of the child. For, were there to be a real prospect that an applicant would persuade the court that a child’s welfare would best be served by [the substantive order sought], it would almost always serve the child’s welfare for the applicant to be given leave to seek to do so. Conversely, were there not to be any such real prospect, it is hard to conceive that it would serve the welfare of the child for the application for leave to be granted. But I hesitate to suggest that analysis of welfare will always be satisfactorily subsumed within an analysis of prospect.”

46. In my judgment it was, and is, necessary for the applicants to apply for leave, since M has not had his home with the applicants for not less than 3 years during the 5 years before the date of the application. Leave ought to have been applied for in the application. I propose to grant leave. Whilst M’s welfare is not the paramount consideration in this connection, the immigration matters, as I have found them to be, are not sufficient to persuade me to refuse leave. Indeed, now that I have conducted a full hearing into the merits and concluded that an adoption order should be made, it would be quite unjust not to grant leave. Even if leave had been sought at the outset of the application, which it should have been but was overlooked, I am confident that it would have been granted.

47. Accordingly, I grant the applicants leave to apply for an adoption order in respect of M and order that M be adopted by them.