G (A Child) v C & Ors

This is the judgment of the court, to which each of its members has made a significant contribution.

This case was listed before us on 14 February 2008 as an application for permission to appeal against an order made by His Honour Judge Vincent, sitting as a judge of the High Court on 1 February 2008. By his order, made under section 84(1) of the Adoption and Children Act 2002 (the 2002 Act) the judge gave parental responsibility to Mr and Mrs C, the applicants in the proceedings before him in relation to a child, PG. The purpose of the order was to facilitate Mr and Mrs. C’s removal of PG to the United States of America, where they intend to make an application to adopt her.

The application before us had been directed into the list by Wilson LJ on 8 February at short notice, with the appeal to follow if permission was granted. We say at once that in our judgment the application raises a point of some importance. We therefore grant permission to appeal. We regard it, however, as a case to which reporting restrictions should apply. Nothing must, accordingly, be published which identifies the child concerned, or any of the adults involved in the case, and this judgment, as will already be apparent, is written anonymously.

The appellant in this court is MM. She is aged 20 and is the mother of PG, who is a female child born on 22 July 2006. PG is thus now approximately aged 19 months. PG’s father is a man whom we will call AG. He is aged 42. Both MM and AG, who are no longer living together, accept that neither is in a position to care for PG, and that it is in her best interests to be adopted. The only relevant difference between them is that AG agrees that PG should be adopted by Mr and Mrs. C in America: MM wishes her to be placed for adoption within the United Kingdom.

Care proceedings under section 31 of the Children Act 1989 were instituted in relation to PG on 3 August 2006 by a local authority, which in the interests of preserving confidentiality, we will not name. Thereafter PG remained in the interim care of that local authority, who placed her with foster parents in September of that year. On 1 August 2007, the local adoption panel recommended that she should be adopted. She was made the subject of a full care order in favour of the local authority on 25 October 2007. The recital to that order records the following: -

In addition to the care order, the local authority was granted permission pursuant to section 34(4) of the Children Act 1989 to suspend contact between PG and her birth parents. Mr and Mrs C’s application under section 84 of the 2002 Act was adjourned to 1 February 2008. Other ancillary orders were made which are not material to this appeal. The plan thus was and remains that PG will be adopted by Mr and Mrs. C in America.

Mrs C is AG’s sister. Albeit that the two are estranged, the plan has the advantage for PG that she will – despite being adopted - remain within the care of her wider paternal family. All the evidence (both in this country and in the United States of America) points to the fact that Mr and Mrs C are, in every way, suitable as adoptive parents for PG, and they have so been assessed both in this country and in the United States. The evidence is also clear that it is in PG’s best interests to be adopted by Mr and Mrs C.

Mr. C is an American citizen: Mrs. C, who was born in England, is both a British and an American citizen. They live in the State of Illinois. It follows, in English law, that in order to be able lawfully to remove PG from England and Wales to Illinois in order to adopt her in Illinois, Mr and Mrs C have to obtain an order under section 84(1) of the 2002 Act. Such an order vests parental responsibility in them to the exclusion of all others: - see section 84(5) of the 2002 Act. On 1 February 2008, Judge Vincent made such an order, and it is this order which is challenged by MM on this appeal.

The preamble to the order made by the judge on 1 February 2008 states that the court was satisfied that Mr and Mrs C intended to adopt PG under the law of the United States of America. The schedule to the order identifies Mr and Mrs. C as the applicants for the order, and PG as the child born to MM and AG. Under the heading: Conditions for adoption, the following was recorded: -

Both in the 2002 Act and in The Adoptions with a Foreign Element Regulations 2005 (henceforth “the Regulations”) Parliament has set out what has to be done before a child can be taken abroad for the purposes of being adopted in a foreign country. Applying those provisions to the facts of the instant case, section 85(1) of the 2002 Act provides that a child in PG’s situation must not be removed from the United Kingdom to Illinois unless Mr and Mrs C have parental responsibility for her under section 84 of the Act. In this appeal, we are thus concerned with that section of the 2002 Act, and also with paragraph 10(b) of the Regulations. The former reads as follows: -

We do not think it necessary to set out section 46(2) to (4) or section 47(2) and (4) of the 2002 Act. The former deals with the effects of adoption orders made in England and Wales, and provides that such orders extinguish the parental responsibility previously held by any person other than the prospective adopters. As we have already pointed out, the effect of an order under section 84 is the same: it extinguishes the parental responsibility previously held by PG’s birth parents as well as that conferred on the local authority by the care order pursuant to section 33(3) of the Children Act 1989.

Section 47(2) and (4) of the 2002 Act sets out the conditions for the making of a domestic adoption order. As applied to the instant case, it provides that parental consent to the making of an adoption order has been dispensed with by the court, and that PG has been placed with Mr and Mrs. C for adoption by an adoption agency. Both conditions are satisfied in the instant case.

We do, however, think it worthwhile noting that section 84(4) appears to be the counterpart of section 42(1) and (2) of the 2002 Act which applies to domestic adoptions, and which read: -

The paragraph of the Regulations which is directly in point is paragraph 10(b) and (c). This appears in Chapter 2 of Part 2 of the Regulations, which is headed TAKING CHILDREN OUT OF THE UNITED KINGDOM and reads as follows: -

Whilst we are dealing with the relevant statutory provisions, we think it important to note that the definition of “relevant foreign authority” in paragraph 2 of the Regulations, which is headed “Interpretation” is as follows: -

We also note that in paragraph 4 of the Regulations, under the heading Conditions applicable in respect of a child brought into the United Kingdom, sub-sections (1) and (4) provide as follows: -

We will return to the significance of paragraphs 2 and 4 of the Regulations later in this judgment.

The first question which arises is whether or not at all times during the 10 weeks preceding the making of the order on 1 February 2008, PG’s home, in the words of section 84(4) of the 2002 Act “was with the applicant or, in the case of an application by two people, both of them”. The factual basis upon which the judge approached the issue was in the following terms: -

Section 84 of the 2002 Act has attracted a great deal of criticism both from practitioners and the family judiciary on the basis that it operates as a significant disincentive to prospective adopters from abroad. Few people, it is argued, will have the capacity to interrupt their lives in order to provide a home for the child within this jurisdiction for the statutory period. There is, of course, the provision in section 86(2) of the 2002 Act which enables Parliament by Regulations to disapply section 85 if the prospective adopters are parents, relatives or guardian of the child in question (or one of them is). No such Regulations have, however, been made.

In this appeal we are not concerned with the disapplication of section 85. The first question for us is whether or not Mr and Mrs. C have satisfied the terms of section 84(4). The judge found that they had, and this finding forms the basis of the first point of challenge advanced by Miss Eleanor Platt QC on behalf of the appellant. Her submission is very simple. Mr C was only here for three weeks. The plain intention of Parliament was that a child in PG’s position should make her home at all times during the 10 week period with both Mr and Mrs C. This she plainly did not do, and accordingly the application falls at the section 84(4) hurdle.

The judge did not accept this submission: neither do we. Having heard full argument on the point, both in the original care proceedings and in the application by Mr. and Mrs C for an order under section 84 of the 2002 Act, the judge concluded:-

In our judgment, the judge gives section 84(4) a sensible and purposive construction; and one, moreover, which was clearly open to him on the facts of the case. We think the judge was correct to identify the purpose of the provision as being not just to ensure that a relationship should begin to be established between the adopters and the child over a continuous period in a domestic context, but also to enable the domestic authorities (in this case the local English adoption agency) to assess Mr and Mrs C, and the relationship each enjoyed with PG. This they were plainly able to do.

We agree with the judge that the issue is one of fact and degree. The physical presence of Mr C throughout the 10 week period was not necessary to satisfy the proposition that PG’s home was with both Mr and Mrs C throughout that period. Had Mr C not been present at all during the period, or only for a day or two, the situation would no doubt have been different. In that event it is unlikely that the local adoption agency would have had an adequate opportunity to make a proper assessment of him as a prospective adopter of PG. We would not attach much weight to telephonic contact between a prospective adopter and a child of 18 months, which might be relevant for an older child. But Mr C’s presence was plainly sufficient to enable a satisfactory assessment to be made. In our view the judge was right to construe section 84(4) as he did and the degree of Mr C’s physical presence was such as to entitle the judge to find that the requirements of that subsection were satisfied.

We therefore have no hesitation in dismissing the appeal in so far as it relates to the judge’s construction of section 84(4). Miss Platt, however, had a much more formidable argument in the form of paragraph 10(b)(iv) of the Regulations. For ease of reference, we repeat that provision: -

It was accepted on all sides that paragraph 10(b) (iv) was not satisfied, and Miss Platt was able to argue, with impeccable logic, that since the confirmation identified in paragraph 10(b)(iv) had to be obtained prior to the making of any order under section 84, the judge had simply had no power to make the order, and should not have done so.

Furthermore, at first blush, it appeared that Mr and Mrs C were caught in a classic double bind or Catch 22. Confirmation under paragraph 10(b)(iv) was required before an order under section 84 could be made: but the United States Embassy had, it seems, made it very clear to Mrs. C that it would not issue a visa enabling PG to enter the United States unless and until the applicants could produce an order under section 84 demonstrating that they had exclusive parental responsibility for PG.

The judge’s solution to the problem posed by paragraph 10(b)(iv) was, as it seems to us, simply to override it. Although he set out the terms of the Regulation, he dealt with them summarily in a few sentences at the very end of his judgment.

Counsel for AG argued that the Judge’s approach could be supported if the regulations were read as containing an element of judicial discretion. His argument ran along the following lines. Section 3 of the Human Rights Act 1998 (HRA 1998) required the court to read and give effect to both primary and secondary legislation in a way which is compatible with Convention rights. In the instant case, PG’s ECHR Article 8 rights to respect for her family life were engaged, and if Mr and Mrs C and PG were indeed caught in the Catch 22 described in paragraph 26 above, the legislation - which plainly envisaged children being sent abroad for adoption – was frustrated and incapable of being put into effect. Parliament could not have intended such an outcome, and the only way to resolve it was to read paragraph 10(b)(iv) of the Regulations in such a way as to enable the legislation to be implemented effectively and in compliance with PG’s rights under ECHR Article 8.

With great respect to the judge, we do not think that the approach taken in the judgment on this point is permissible and nor do we think it can be supported by the approach counsel for AG urged upon us. On the face of the legislation, the implementation of safeguards against the unregulated expatriation of children is legitimate, and both the Statute and the Regulations, are – on their face - what we can properly call “HRA 1998 compliant”. In our judgment, the question with which we are confronted is a different one: - namely, is the legislation so drafted as to impose the Catch 22 which the parties have identified?

We do not think that it is. The first step is to examine what it is that regulation 10(b) requires. A first point is what is meant by “the relevant foreign authority” in this context? That phrase, defined in Regulation 2, as set out at paragraph 15 above, is only used in Part 2 of the Regulations. In relation to a child to be brought into the United Kingdom, it appears in Regulation 4(2) and (3) and Regulation 5. In relation to children to be taken out of the United Kingdom (as in this case) it is used in Regulation 10(b) and (c). By virtue of the terms of the definition, these references may be either to the foreign equivalent of an English adoption agency, or to a foreign governmental body. In most cases it seems reasonably clear which is meant. Thus, while we do not need to, and do not, decide this, it seems likely that the confirmation to be provided by the Secretary of State under Regulation 4(2)(a) is to be provided by a governmental equivalent. Coming to Regulation 10(b), it is obvious that, as regards paragraphs (i), (ii) and (iii), the entity is the foreign equivalent of an English adoption agency. It seems to us that it would be strange if a different body had to satisfy the requirement in paragraph (iv).

Elsewhere in the Regulations there are contrasting provisions with a somewhat similar subject matter. In Regulation 4(2), as already mentioned (quoted at paragraph 16 above), the Secretary of State (meaning the Secretary of State for Education and Skills) must issue a certificate to the relevant foreign authority about the child’s prospective immigration status, but this may be in significantly conditional terms. In the realm of Convention adoptions, on the other hand, Regulation 31(c) imposes a precondition to the making of such an order, if the applicant, or one of them if the application is by a couple, is not a British citizen, that the Home Office has confirmed that the child is authorised to enter and reside permanently in the United Kingdom. So that confirmation is to be given by the Department responsible for immigration, and must be given in unqualified terms.

It seems to us that the correct reading of the Regulations is, first, that the confirmation which has to be given in order to satisfy Regulation 10(b)(iv) is to be given by the foreign equivalent of the English adoption agency, not by a governmental body, and secondly, that it need not be in absolute, unconditional or unqualified terms. We read it as requiring confirmation from the foreign body equivalent to an English adoption agency to the effect that, provided that all relevant procedures in the United Kingdom, and any adoption-related procedures under the law of the foreign state which are prerequisites to the child being allowed into that state are followed, then, from its knowledge and experience, the child will be authorised to enter the foreign state.

In the present case the “relevant foreign authority” for these purposes is an organisation in Illinois which we will not identify, but which we will call “the American Adoption Agency”. Such an agency cannot, of course, bind the local immigration authorities, but it can speak from its experience. If that experience, or the advice it has received, gives it reason to believe that the child will be authorised to enter the foreign state (in the instant case, of course, the United States of America) if an order is made under section 84(1), that, in our judgment, would enable it to give the confirmation which is required under regulation 10(b)(iv), despite the understandable reluctance of the immigration authorities to commit themselves in advance.

There is in our papers an opinion from an American lawyer, obtained by the local authority, to the effect that, under American law, a child will be admitted to the United States of America if he or she has the status of an orphan. It would also seem from that opinion that the status of orphan includes children separated from both their parents involuntarily by the actions of a competent authority for good cause and in accordance with the laws of the foreign-sending country. The American lawyer adds that the parents of the child concerned must have been properly notified and granted the opportunity to contest such action, and that the termination of all parental rights and obligations must be permanent and unconditional. On that basis, PG would appear to fulfil all these conditions.

Since this is our analysis of the law, the question becomes: what do we do? We could allow the appeal, set aside the order and remit the case to the judge to reconsider it in the light of any further evidence. We have, however, decided that the better – and, we hope, speedier - course is to adjourn the appeal for a period of 28 days, with liberty to any party to restore it before that period has elapsed. We propose to invite the local authority and the guardian to make a further approach to the American Adoption Agency, as the relevant foreign authority, to enquire if that organisation is able to provide the level of confirmation which we think necessary to satisfy paragraph 10(b)(iv). On any adjourned hearing, we would be prepared to entertain an application to adduce fresh evidence, and if satisfied that the fresh evidence fulfils the requirements of paragraph 10(b)(iv) we would dismiss the appeal and confirm the judge’s order.

Miss Platt, who conducted the appellant’s case with appropriate moderation, was prepared to accept that whilst there may have been other breaches of paragraph 10 of the Regulations, these were either rectifiable or immaterial, and she takes no point on them. We think that was the right approach. We remain of the view, however, that the safeguards put in place by the 2002 Act and the Regulations are there for a legitimate purpose and are not to be ignored. It would, we think, therefore be appropriate for the local authority and the guardian to satisfy us, on the next occasion, that all the relevant provisions of the Regulations have been satisfied.

A good example of the shortcomings identified in paragraph 36 above relates to the failure to comply with regulation 10(c). No particular attention seems to have been given to this before the judge. We were told by Mrs C that there would be no problem about confirming that both she and Mr C would accompany PG on her journey out of the United Kingdom and into the United States of America and the State of Illinois. If written confirmation of this was lacking before the judge, it is a deficiency that can readily be rectified, and this should be done before the adjourned hearing of this appeal.

If no further progress can be made within the next 28 days, we will reconvene for further argument. We very much hope, however, that this will not be necessary. The evidence – both from this country and from the United States of America - is overwhelming that PG’s best interests throughout her minority would be best served by being adopted by Mr and Mrs. C in America.

For the avoidance of any doubt, we give permission for a copy of this judgment to be shown to the American Adoption Agency and to the relevant American immigration authorities.