N (Children : Adoption: Jurisdiction)

These are appeals, pursuant to permission granted by my Lady, Black LJ, on 3 December 2014, from a decision of His Honour Judge Bellamy, sitting as a Deputy High Court Judge. His judgment, handed down on 11 November 2014, has been published and can be found, available to all, on the free, open-access, BAILII website: Re J and E (Children: Brussels II Revised: Article 15) [2014] EWFC 45.

Judge Bellamy was conducting the final hearing of care and placement order proceedings in relation to two Hungarian children, J born in January 2012 and E born on 6 May 2013. He directed that the proceedings were to be transferred to Hungary in accordance with Article 15 of the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, commonly referred to in this country as Brussels II Revised, BIIR or, as I shall refer to it here, BIIA.

The essential issue is whether Judge Bellamy was right to proceed as he did under Article 15. The local authority, represented by Mr Roger McCarthy QC and Mr Mark Twomey, supported by the children’s guardian, represented by Mr Iain Goldrein QC and Ms Martha Cover, submit that Judge Bellamy was wrong. The mother, represented by Mr William Tyler QC and Mr Malcolm MacDonald, and the father, represented by Mr Alistair MacDonald QC and Mr Dorian Day, submit that he was right and that the appeals should accordingly be dismissed. My conclusion is that, subject only to one matter which does not affect the substance, Judge Bellamy was right, essentially for the reasons he gave, and that the appeals should accordingly be dismissed.

During the hearing of these appeals, the issues have broadened, and we have necessarily had to consider a number of very basic but nonetheless fundamentally important issues to do with the application of our domestic adoption law in cases with a foreign element. This judgment is therefore both wide-ranging and in consequence lengthy, as has been its preparation. This has, most unfortunately, led to even more delays in a case that has already been unduly delayed. I am very sorry.

Since our judgments may be read by those not familiar with our domestic constitutional arrangements, I should explain at the outset that within the United Kingdom of Great Britain and Northern Ireland (what for ease of reference I shall call ‘the United Kingdom’) there are three quite separate legal jurisdictions: England and Wales (which for ease of reference I shall call ‘England’), Scotland and Northern Ireland. We are sitting as judges of the Court of Appeal in England, applying, in addition to the relevant international obligations of the United Kingdom, the domestic law of England.

I should also explain that, as President of the Family Division, I am Head of Family Justice for England and Wales. Black LJ in addition to being a judge of the Court of Appeal is also Head of International Family Justice for England and Wales. The third member of the court, Aikens LJ is a judge of the Court of Appeal whose primary experience and expertise lies in other areas of law but who, in those fields, has great experience of cross-border jurisdictional issues of the kind that arise here. We are glad to have him sitting with us: it is important in cases such as this that we, and the litigants, have the benefit of a judge who is not primarily a family lawyer and who can bring to bear a non-family law perspective.

The background to these appeals is the fact that England is unusual in Europe in even permitting adoption without parental consent, indeed in the teeth of parental opposition – what I shall refer to as ‘non-consensual adoption’ – and even more unusual in the degree to which it has recourse to non-consensual adoption, both domestically and in the case of children who are foreign nationals. (Footnote: ¹ ) The key provision in English law is section 52(1) of the Adoption and Children Act 2002, which provides that:

I am acutely conscious of the concerns voiced in many parts of Europe about the law and practice in England and Wales in relation to what is sometimes referred to as ‘forced adoption’ but which I prefer, and I think more accurately, to refer to as non-consensual adoption. There is no shirking the fact that our approach in these matters has given rise to controversy abroad and particularly in Europe. I make no apology for repeating what I said, sitting at first instance, in Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] 2 FLR 151, paras 13-15, a case involving a child from Slovakia:

In Re D (A Child) [2014] EWHC 3388 (Fam), para 35, speaking of practice in this country, Mostyn J commented:

Earlier in his judgment he had described in powerful words (para 1) the reality of what the English court is doing in such cases:

Further prominence has been given to these concerns by the publication in January 2015 of the Report (Rapporteur, Ms Olga Borzova) of the Committee on Social Affairs, Health and Sustainable Development of the Parliamentary Assembly of the Council of Europe, Social services in Europe: legislation and practice of the removal of children from their families in Council of Europe member States (the Borsova Report). So far as I am aware there has been no public official response by the United Kingdom to the Borsova Report.

I do not resile from a word of what I said in Re E. But there are four important matters to be borne in mind, to which I need to draw attention.

The first is that non-consensual adoption has been part of English law ever since we first had adoption. Adoption (Footnote: ² ) in its legal sense has in England always been regulated by statute. There was and is no adoption at common law. Adoption was introduced in England by the Adoption of Children Act 1926. Section 2(3) provided that the court might dispense with parental consent:

Section 3(1) of the Adoption Act 1949 introduced, in place of the final words of section 2(3) of the 1926 Act, the power to dispense with consent if it was “unreasonably withheld.” That was carried forward in section 3(1)(c) of the Adoption Act 1950, section 5(1)(b) of the Adoption Act 1958, and section 16(2)(b) of the Adoption Act 1976. Section 52(1) of the Adoption and Children Act 2002, as we have seen, substitutes the rule that consent can be dispensed with if that is what “the welfare of the child requires.”

So, although the precise criteria have changed from time to time, the English court has always had power to dispense with parental consent in certain defined circumstances.

It is important to acknowledge, however, that, whatever the legal theory, practice has changed dramatically over the 89 years we have had adoption in England. Non-consensual adoption used to be rare, but the position has changed radically. Initially, the courts took a very narrow view indeed of the final limb of section 2(3) of the 1926 Act: see Re JM Caroll [1931] 1 KB 317 and contrast H v H [1947] KB 463. Much more important, the entire focus of adoption has changed dramatically in recent decades. Until the late 1960s, the typical adoption was of an illegitimate child born to a single mother who, however reluctantly, consented to the adoption of her child. Non-consensual adoption was comparatively rare. A combination of dramatic changes in the 1960s – the ready availability of the contraceptive pill, the legalisation of abortion, the relaxation of the divorce laws and a sea-change in society’s attitudes to illegitimacy – led to a drastic reduction in the number of adoptions of the traditional type. The result of various changes in the system of public childcare, culminating in the implementation in October 1991 of the 1989 Act, has led in recent decades to a correspondingly dramatic increase in the number of non-consensual adoptions. The typical adoption today is of a child who has been made the subject of a care order under the 1989 Act and where parental consent has been dispensed with in accordance with section 52(1)(b) of the 2002 Act.

The second important matter is the English court’s understanding of what is meant by the word “requires” in section 52(1)(b) of the 2002 Act. The definitive statement is to be found in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras 125-126:

The third important point, which must not be forgotten in all the rhetoric about ‘forced adoption’, is that, whatever the concerns expressed elsewhere in Europe, there can be no suggestion that, in this regard, the domestic law of England and Wales is incompatible with the United Kingdom’s international obligations or, specifically, with its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms. There is nothing in the Strasbourg jurisprudence to suggest that our domestic law is, in this regard, incompatible with the Convention. For example, there have been no non-consensual adoption cases in which a successful challenge has been mounted at Strasbourg to the effect that the English system is, as such, Convention non-compliant.

The fourth point is the one I made in In re R (A Child) (Adoption: Judicial Approach) [2014] EWCA Civ 1625, [2015] 1 WLR 3273, para 45:

Before going any further I need to make another general point the importance of which, in my judgment, cannot be over-stressed. Again, I make no apologies for quoting what I said in Re E, paras 17-19:

I went on (para 20) to counsel against what I called “the sins of insularity” and to point out that exposure to what our colleagues are doing elsewhere in Europe has:

We returned to the same point in Re M (Brussels II Revised: Art 15) [2014] EWCA Civ 152, [2014] 2 FLR 1372, para 19, where Ryder LJ said:

In Re E I also drew attention (paras 38-41) to the provisions of Articles 36 and 37 of the Vienna Convention on Consular Relations of 24 April 1963. I set out (paras 45-48) what good practice would in future require. I emphasised (para 46) that:

I went on (para 47) to make two points to which I need to draw attention. First, in every care or other public law case involving a child who is a foreign national,

Having thus set out the wider context in which these appeals fall to be determined, I need, before proceeding any further, to set out an explanatory account, for the benefit in particular of those reading this judgment who may not be familiar with it, of the English law and practice in relation to care orders, placement orders and adoption orders.

The law in relation to care orders is set out in the Children Act 1989, the law in relation to placement orders and adoption orders in the Adoption and Children Act 2002.

In relation to the making of a care order (that is, an order placing a child in the care of a local authority), the fundamental provision is section 31(2) of the Children Act 1989:

There is no statutory elaboration of what is meant by the word “significant” in section 31(2)(a). Its meaning was considered by the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, paras 23-31, 56, 108, 179-193.

“Harm” is defined as follows in section 31(9):

Section 31(2) defines the statutory ‘threshold’ that has to be met if the court is to have jurisdiction to make a care order. If the ‘threshold’ is not established, the court dismisses the application. If the ‘threshold’ is established, the court must then proceed to consider what, if any, order to make.

Section 1(1) of the 1989 Act provides that at this stage:

If the local authority’s plan is for the adoption of the child, the court must also at this stage comply with the more stringent requirements of section 1 of the Adoption and Children Act 2002: In re C (A Child) (Placement for Adoption: Judicial Approach) Practice Note [2013] EWCA Civ 1257, [2014] 1 WLR 2247, para 29, In re R (A Child) (Adoption: Judicial Approach) [2014] EWCA Civ 1625, [2015] 1 WLR 3273, para 51.

Section 1(2) of the 2002 Act provides that:

This is not the occasion for any elaborate analysis of how the court should exercise its powers under the 1989 Act, but there are some absolutely fundamental points to which I need to draw attention.

First, it is for the local authority to establish the ‘threshold’ in accordance with section 31(2) of the 1989 Act. This requires the local authority (a) to prove the facts upon which it seeks to rely, (b) to establish that the facts so proved meet the “significant harm” test and (c) to establish that the “significant harm” thus established meets the “reasonable parent” test, that is, that the care given to the child was not what it would be reasonable to expect a parent to give: see Re A (A Child) [2015] EWFC 11, approved by this court in Re J (A Child) [2015] EWCA Civ 222. In particular, the local authority must prove that there is the necessary link between the facts upon which it relies and its case on ‘threshold’; it must demonstrate why certain facts, if proved, justify the conclusion that the child has suffered or is at risk of suffering significant harm of the type asserted by the local authority.

In relation to the ‘reasonable parent’ criterion, it is vital always to bear in mind in these cases the wise and powerful words of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, para 50:

That approach was endorsed by the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075. I draw attention, without quoting, to what Lord Wilson of Culworth said (para 28). Baroness Hale of Richmond said (para 143):

I add that, as pointed out in Re K; A Local Authority v N and Others [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, para 26, in a passage approved by Baroness Hale of Richmond in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, para 178:

The second fundamental point to which I need to draw attention is that, if it is seeking to have a child adopted, the local authority must establish that “nothing else will do”: see In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, and In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035. See also In re R (A Child) (Adoption: Judicial Approach) [2014] EWCA Civ 1625, [2015] 1 WLR 3273. As Baroness Hale of Richmond said in In re B, para 198:

The third fundamental point relates to practice and procedure: see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, and In re R (A Child) (Adoption: Judicial Approach) [2014] EWCA Civ 1625, [2015] 1 WLR 3273. It suffices for present purposes to quote what was said in Re R, para 57, referring back to Re B-S:

I shall return below to consider how these principles apply to cases involving the proposed adoption of a foreign national.

A placement order is defined in section 21(1) of the Adoption and Children Act 2002 as:

A parent may not apply to revoke a placement order except in accordance with section 24 of the 2002 Act. Section 24(2) provides that a parent cannot apply:

Section 46(1) of the Adoption and Children Act 2002 defines an adoption order as:

Section 49 of the 2002 Act provides as follows:

Section 42 of the 2002 Act prescribes certain conditions which have to be met before an adoption order can be made. There is no need for me to go through this in detail. The relevant point for present purposes is that “the child must have had had his home” with the applicant or applicants, as the case may be, for one or other of the periods specified in section 42. In addition, section 42(7)(b) provides that:

Section 47 of the 2002 Act deals with parental consent to the making of an adoption order. The effect of sections 47(1), 47(4) and 47(5) is that where the child has been placed for adoption under a placement order, a parent cannot oppose the making of the adoption order “without the court’s leave”. And section 47(7) provides that:

Having thus set out the wider context and statutory provisions, I need, before proceeding further, to summarise the forensic background to the appeals in the present case. Although I shall need to elaborate some parts of this in due course, the essentials can be outlined quite briefly. The full details are available in Judge Bellamy’s published judgment.

J, as I have said, was born in January 2012. Her parents are not married. Her mother is Hungarian, her father Hungarian / Roma. Accordingly, although she was born in this country J is not a British citizen; she is a citizen of Hungary. E was born, also in this country, on 6 May 2013. The police exercised their powers of protection under section 46 of the Children Act 1989. J was placed with emergency foster carers. On 9 May 2013 the local authority applied for emergency protection orders in accordance with section 44 of the 1989 Act. Because the parents agreed to both children being accommodated by the local authority in accordance with section 20 of the 1989 Act, no orders were made by the court on the local authority’s application under section 44. On 14 June 2013, E was discharged from hospital and placed in foster care, initially separately from J but after two weeks in the same placement, where J and E have remained together ever since.

The foster placement is with an English family. The unhappy consequence was noted by Judge Bellamy (Re J and E, para 17):

The local authority did not issue care proceedings in accordance with section 31 of the 1989 Act until 24 January 2014. I shall need to return to this in due course, but at this stage merely note what Judge Bellamy said (Re J and E, para 30):

The proceedings were, of course, commenced shortly before the coming into existence of the Family Court. So the proceedings were issued, as at that time they had to be, in the South West London Family Proceedings Court. They were promptly transferred to the Care Centre, where they came before Her Honour Judge Williams on 31 January 2014. Judge Williams directed that information was to be disclosed to the Hungarian Central Authority (the HCA) and invited the HCA to attend the next hearing and consider intervening. At a further hearing before her on 11 February 2014, Judge Williams made interim care orders, transferred the proceedings to the High Court and repeated the invitation to the HCA.

Thus far the proceedings in court had proceeded as they should. The same, I regret to have to say, cannot be said of the proceedings after the transfer to the High Court. Judge Bellamy was the seventh judge who heard the matter in the High Court, previous hearings having taken place before Moor J (on 26 February 2014), Holman J (on 18 March 2014), Sir Peter Singer (on 9 and 12 May 2014), Hogg J (on 25 June 2014), Russell J (on 4 September 2014) and His Honour Judge Mark Rogers who, like Judge Bellamy subsequently, was sitting as a Deputy High Court Judge (on 22-23 September 2014).

The mother’s application under Article 15 of BIIA had been issued on 14 March 2014, shortly before the hearing on 18 March 2014 before Holman J. Correctly, and no-one has sought to challenge this, Holman J held that both J and E were habitually resident in this country and, accordingly, that the English court had jurisdiction under BIIA Article 8: London Borough of Hounslow v AM & Ors [2014] EWHC 999 (Fam), para 4. Holman J explained (paras 10-12) why he was adjourning the mother’s application:

When the matter came before Sir Peter Singer in May 2014, he refused the mother’s application, though providing that it might be re-opened. In his judgment he said (paras 24-25):

The fact-finding hearing took place before Hogg J on 25 June 2014 in the circumstances and with the outcome recorded by Judge Bellamy (Re J and E, paras 40-41). The facts as found by Hogg J were correctly accepted by all parties as sufficient to establish the ‘threshold’ in accordance with section 31(2) of the 1989 Act. Her order provided that any renewed application by the mother for transfer under Article 15 was to be notified to the parties by 22 August 2014.

The final welfare hearing was fixed for 22 September 2014. On 27 August 2014 the mother renewed her application under Article 15. It was listed for directions before Russell J on 4 September 2014. Russell J’s order contained a recital that:

The final hearing was due to commence on 22 September 2014 before Judge Mark Rogers. The hearing was abortive. Judge Bellamy explained why (Re J and E, para 49):

When the matter came on for final hearing before Judge Bellamy on 3 November 2014, it proved impossible, without a further adjournment, to proceed in the way envisaged by Russell J. Judge Bellamy decided to proceed nonetheless. He explained why (Re J and E, para 72):

The hearing before Judge Bellamy lasted 5 days, from 3 to 7 November 2014. He circulated his judgment in draft on 9 November 2014. At a further hearing on 11 November 2014 he directed that the judgment would be handed down on 19 November 2014. In fact, as I have said, it is dated 11 November 2014. Judge Bellamy decided to transfer the case in accordance with Article 15. I shall return below to consider his reasons for doing so. He concluded his judgment as follows (J and E, para 102):

Both the local authority and the children’s guardian sought permission to appeal. The father and the mother each served a Respondent’s Notice. Permission to appeal was granted by my Lady, Black LJ, on 3 December 2014.

The appeals initially came on for hearing before my Lord and my Lady, Aikens and Black LJJ, sitting with Underhill LJ, on 4 February 2015. During the course of the hearing an entirely new point was raised by the local authority which had not been taken before Judge Bellamy: the effect of Article 1.3(b) of BIIA. This point, with others which arguably followed in its train, made it inappropriate to continue the hearing. The local authority was given permission to amend its grounds of appeal. The hearing of the appeals was re-fixed. They came on for hearing before us on 25 March 2015. In the meantime, on 15 March 2015, we had invited counsel to prepare submissions on a number of additional matters. The hearing of the appeals extended well into a third day. The arguments, as we had anticipated, ranged far and wide. We are immensely grateful for the very helpful and detailed submissions, both written and oral, which counsel have put before us. They will, I hope, forgive me if I pass some of their arguments by in silence, though I make clear that I have had all of them very much in mind throughout.

As matters have developed, the following issues arise for determination:

Does the English court have jurisdiction (a) to make an adoption order in relation to a child who is a foreign national and (b) to dispense with the consent of a parent who is a foreign national?

If the English court has jurisdiction (a) to make an adoption order in relation to a child who is a foreign national and (b) to dispense with the consent of a parent who is a foreign national, how should it exercise that jurisdiction?

What is the scope or ambit of BIIA? In particular, what is included within its scope by virtue of Article 1(1)(b) and excluded from its scope by virtue of Article 1(3)(b)? Specifically, are care proceedings within the scope of Article 1(1)(b) even if the local authority’s care plan is for adoption? Are proceedings for a placement order within the scope of Article 1(3)(b)?

What, upon the true construction of Article 15 of BIIA, are the requirements before the English court can make a request for a transfer to the other Member State?

Leaving on one side any question arising in relation to Article 1(3)(b), was Judge Bellamy justified in deciding as he did to exercise jurisdiction under Article 15? Can it be said that he was “wrong” to do so?

Was Judge Bellamy’s decision vitiated by his failure to address Article 1(3)(b)? What are the consequences of his omission to do so?

Issues (ii) and (iv) of their nature do not admit of a simple yes/no answer. But before proceeding further it will be convenient for me to set out my answers in relation to issues (i), (iii), (v) and (vi):

The English court has jurisdiction (a) to make an adoption order in relation to a child who is a foreign national and (b) to dispense with the consent of a parent who is a foreign national.

…

Care proceedings are within the scope of Article 1(1)(b) even if the local authority’s care plan is for adoption. Proceedings for a placement order are within the scope of Article 1(3)(b). It follows that Article 15 applies to care proceedings, even if the local authority’s care plan is for adoption, but does not apply to proceedings for a placement order.

…

Leaving on one side the impact of Article 1(3)(b), Judge Bellamy was justified in deciding as he did, and for the reasons he gave, to exercise jurisdiction under Article 15. It cannot be said that he was “wrong” to do so. As will be seen, he undertook a very careful evaluation of all the relevant factors. He did not consider any irrelevant factors. He did not err in the weight he attached to the relevant factors. He did not misdirect himself in law or err in principle. Looked at overall, his conclusion was not perverse and was not wrong.

The fact that Judge Bellamy did not appreciate the effect of Article 1(3)(b) does not vitiate his decision. His decision under Article 15 in relation to the care proceedings can, and should, stand. His decision in relation to the placement proceedings, which are within the ambit of Article 1(3)(b), cannot stand. The consequence is that (a) the care proceedings are stayed in consequence of the transfer under Article 15 and (b) the placement order proceedings, which are of their nature consequential upon the care proceedings, are stayed in consequence of the stay of the care proceedings.

I come therefore to the questions of law (issues (i), (ii), (iii) and (iv)) which lie at the heart of these appeals .

It is convenient to start with the question of the scope and applicability of BIIA. I consider the question first in relation to care proceedings, then in relation to adoption proceedings.

Article 1 of BIIA defines the types of proceedings to which BIIA applies. I need not set it out. It is well established by both European and domestic case-law that BIIA applies to care proceedings: see, in particular, Re C (Case C-435/06) [2008] Fam 27, [2008] 1 FLR 490. It follows from this, and from the provisions of Article 8 (which provides, so far as material, that “The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised”) that, where BIIA applies, the courts of England and Wales do not have jurisdiction to make a care order, as would otherwise be the case (see Re E, para 23) merely because the child is present within England and Wales. The question is one of habitual residence. In every care case where there is a European dimension, the starting point is, therefore, an inquiry as to where the child is habitually resident. That is an inquiry which, because it goes to jurisdiction, must be undertaken by the court at the very outset of the proceedings and, I emphasise, whether or not the point has been raised by the parties.

Article 1(3)(b) of BIIA provides that BIIA:

This is a question which we recently considered in Re CB (A Child) [2015] EWCA Civ 888. There the question was whether a parent’s application under section 47(5) of the 2002 Act for permission to oppose the making of an adoption order was a “measure preparatory” to adoption within the meaning of Article 1(3)(b). Approving my earlier decision at first instance in Re J and S (Children) [2014] EWFC 4 in preference to the dicta of Ryder LJ in Re M (Brussels II Revised: Art 15) [2014] EWCA Civ 152, [2014] 2 FLR 1372, para 12, we held that an application under section 47(5) was a “measure preparatory.” In the present case, we are concerned with two rather different questions. First, is an application for a placement order in accordance with section 21 of the 2002 Act a “measure preparatory”? Secondly, is an application for a care order in accordance with section 31 of the 1989 Act a “measure preparatory” in a case where the local authority’s plan which it invites the court to approve is for adoption? In my judgment, the answer to the first question is Yes; the answer to the second question is No.

In Re CB, as in this case, we were referred to the commentary in paragraph 28 of the Lagarde Report, explaining the materially identical language of Article 4(b) of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children:

I agree with the observation of Theis J in A and B v P Council [2014] EWHC 1128 (Fam), para 29 (a case on Article 4 of the 1996 Convention) that the Article “is to be interpreted widely and includes all aspects of the adoption process, including the placement of children for adoption.”

In my judgment, on the plain language of Article 1(3)(b), which like all other provisions of BIIA must be given an autonomous meaning, and having regard to the Lagarde Report, it is clear that an application for a placement order is a “measure preparatory” to adoption within the meaning of Article 1(3)(b). It forms part of the process of adoption as set out in the 2002 Act; it is a precursor to the making in due course of an adoption order, and it has to do, as its name indicates, with the “placement” of the child, specifically with a view to adoption. In contrast, care proceedings, even if the plan is for adoption, are not, as such, part of the process of adoption. A care order, even if the court has approved a plan for adoption, does not of itself authorise a placement with a view to adoption. It may be a step along the way of implementing the local authority’s plans for the child, but it is not a “measure preparatory” to adoption. There are many illustrations of this in the case-law: see, for example, Leicester City Council v S and others [2014] EWHC 1575 (Fam) and Re J (A Child: Brussels II Revised: Article 5: Practice and Procedure) [2014] EWFC 41.

In the course of argument before us it was suggested that the crucial stage in the process at which Article 1(3)(b) begins to operate is when the child is placed for adoption. Thus it was submitted that an application for a placement order is not a “measure preparatory” to adoption, in contrast to an actual placement of a child for adoption pursuant to an order of the court, which is. With all respect to those propounding this argument, it is, in my judgment, plainly wrong. It elevates the placement – a concept which is not even referred to in Article 1(3)(b) – to a determinative role. No doubt, the placement of a child following the making of a placement order is a “measure preparatory” to adoption, but there is nothing, either in Article 1(3)(b) or in the Lagarde Report, to prevent some earlier step being such a “measure”. The application for a placement order, the inevitable precursor to the actual placement of the child for adoption, is, in my judgment, as much a “measure preparatory” as the placement itself.

As will be appreciated, the effect of Articles 1, 1(3)(b) and 8 of BIIA is that whereas, in the case of care proceedings, the jurisdiction of the court to entertain the proceedings is determined by the provisions of BIIA, specifically Article 8, this is not so in the case of adoption or placement order proceedings under the 2002 Act. What, then, determines the jurisdiction of the court to make orders under the 2002 Act, specifically, jurisdiction to make an adoption order in accordance with the 2002 Act? And related to this, in cases involving a foreign child or a foreign parent, by reference to what system of law is the case to be decided?

Of its nature, an adoption involves three different parties: the child, the natural parent(s) and the adoptive parent(s). In principle, therefore, the jurisdiction of the court could be defined by reference to the circumstances (for example, nationality, domicile, habitual residence, presence within the jurisdiction) of the child, and/or the circumstances (nationality, domicile, habitual residence, presence) of the natural parent(s), and/or the circumstances (nationality, domicile, habitual residence, presence) of the adoptive parent(s).

Now it is true that section 42(7)(b) of the 2002 Act requires the presence of the child within the jurisdiction at some point either before or during the adoption process, a requirement that goes to the practical ability of the court to make an adoption order. Moreover, although the English courts sometimes make orders affecting the status of a person outside the jurisdiction, this is rare. However, it is clear from section 49 of the 2002 Act that the fundamental foundation of the jurisdiction of the court to entertain the application for an adoption order at all is determined by the circumstances, crucially for present purposes the domicile or habitual residence, of the adoptive parent(s) and no-one else. Moreover, and assuming that the jurisdictional requirements of section 49 are met, the 2002 Act contains no limitation, whether by reference to nationality, domicile or habitual residence, upon the children who can be adopted or the natural parent(s) whose consent can be dispensed with pursuant to the 2002 Act.

In other words, if the sole basis of the court’s jurisdiction is by reference to the domicile or habitual residence of the adoptive parent(s), it must follow that it has jurisdiction to make an adoption order in relation to a child irrespective of the child’s nationality, domicile or habitual residence, and likewise has jurisdiction to dispense with the consent of the natural parent(s) irrespective of their nationality, domicile or habitual residence. That is what, in my judgment, one derives from a simple reading of the 2002 Act.

I need, however, to explore this in a little more detail, to see whether there is any reason to go beyond this simple reading. I turn first to deal with the child.

The law was not always as it is now laid down in the 2002 Act. Section 2(5) of the Adoption of Children Act 1926 provided that:

What in due course became section 1(2) of the 1949 Act (removing the nationality qualification) received much attention during the second reading debate in the House of Commons on 18 February 1949 (Hansard, Vol 461, cols 1477-1534). It is clear that much of the thinking that underlay the removal of the nationality requirement was prompted by the many children who had been orphaned, displaced or become refugees following the Spanish Civil War and the Second World War.

Mr Basil Nield (later Nield J), member for the City of Chester, moving the second reading, said (col 1480):

The corollary of section 1(2) of the 1949 Act was the provision in section 8 that:

This was carried forward by section 16(1) of the Adoption Act 1950, section 19(1) of the Adoption Act 1958, and section 40(1) of the Adoption Act 1976. The provisions currently in force are sections 1(5) and 1(5A) of the British Nationality Act 1981, as amended by the 2002 Act:

The fact that English law permits the adoption of a child who is a foreign national is entirely compatible with international Conventions and the United Kingdom’s treaty obligations. Thus Article 11 of the European Convention on the Adoption of Children of 24 April 1967 provided that “the Contracting Party of which the adopter or adopters are nationals shall facilitate acquisition of its nationality by the child.” Article 12 of the European Convention on the Adoption of Children of 27 November 2008 provides that “States Parties shall facilitate the acquisition of their nationality by a child adopted by one of their nationals.”

The implications of the child being domiciled abroad were considered by Goff J (Sir Reginald Goff, later Goff LJ, to be distinguished from Sir Robert Goff, later Robert Goff LJ and then Lord Goff of Chieveley) in an important case, which seems for some reason to have slipped from current awareness: In Re B(S) (An Infant) [1968] Ch 204. The question was whether the English court (in those days, before the creation of the Family Division in 1971, the Chancery Division) had jurisdiction to make an adoption order in respect of the child of a Spanish father, domiciled in Spain, and an English mother. The child was living in England and Goff J assumed, without deciding, that the child was domiciled in Spain. The mother consented to the child’s adoption but the father did not. The prospective adopters sought an order dispensing with the father’s consent in accordance with section 5 of the Adoption Act 1958.

Goff J cited a passage from the judgment of Lord Denning MR in In re Valentine’s Settlement, Valentine and others v Valentine and others [1965] Ch 831, 842, a case where the question for the English court was whether it would recognise a foreign adoption order. What Lord Denning MR said was this:

Goff J expressed his own conclusions as follows (208-210):

Having considered the views of various distinguished academic writers, Goff J continued (211):

I respectfully agree with Goff J’s analysis and conclusion.

It follows that I also agree with what is said in Dicey, Morris & Collins on the Conflict of Laws, ed 15, Vol 2, paras 20-096 – 20-097, 20-107:

As we have seen, Goff J said, and I agree, that “the English Act creates the jurisdiction and provides in detail for the conditions and effect of its exercise.” Accordingly, I agree with what is said in Dicey, Morris & Collins, paras 20-106:

The corollary of this is that the English court has jurisdiction to dispense with the consent of the natural parent(s) and to make an adoption order irrespective of the nationality, domicile, habitual residence or presence within the jurisdiction of the natural parent(s); and that when exercising that jurisdiction the court will apply English law, that is, decide the issue by reference to section 52(1) of the 2002 Act. This, it may be noted, was the course adopted by Goff J in In re B(S), where he dispensed with the consent of the Spanish father, applying the criteria in section 5(2) of the 1958 Act.

Appropriately and helpfully, because this point has been rumbling around for years and needs to be put to rest, these propositions have been directly challenged and put in issue before us. Simply put, the question is this: assuming that the English court has jurisdiction, what system of domestic law should it apply when deciding whether to dispense with parental consent and whether to make an adoption order? The argument in short is that the status of the child’s natural parent(s) and their parental rights cannot be extinguished by the English court dispensing with their consent and making an adoption order except in accordance with and as permitted by the law of the state of the parental domicile. So too, by parity of reasoning, it is argued that the child’s status cannot be changed except in accordance with and as permitted by the law of the state of the child’s domicile.

The starting point of the argument was the judgment of this court in In re Goodman’s Trusts (1881) 17 Ch D 266. The question there was whether a child, born out of wedlock to parents domiciled in Holland but legitimated according to the law of Holland by the subsequent marriage of her parents, was entitled to share in the personal estate of an intestate dying domiciled in England. The question arose because, at that time, the doctrine of legitimation of issue by the subsequent marriage of the parents was not recognised in English law. This court by a majority (Cotton and James LJJ, Lush LJ dissenting) held, reversing Sir George Jessel MR, that she was so entitled.

It suffices to go to the judgment of James LJ, 296-297:

Hence, the basic feature of status as fixed by the law of the domicile is, as was said in In re Luck’s Settlement Trusts, In re Luck’s Will Trusts, Walker v Luck and others [1940] Ch 864, 894, its universality.

I need to refer also to the speech of Lord Scarman in Clark (Inspector of Taxes) v Oceanic Contractors Inc [1983] 2 AC 130. He cited (144) the words of James LJ in Ex parte Blain (1879) 12 Ch D 522, 526, referring to the:

Lord Scarman continued (145):

The corollary of this, so the argument goes, is that there is nothing in the 2002 Act, nor in any of its predecessors, to bring Lord Scarman’s exception into play. So, it is said, the status of the child’s natural parent(s) cannot be extinguished by the English court except in accordance with and as permitted by the law of the state of the parental domicile, nor can the child’s status be changed except in accordance with and as permitted by the law of the state of the child’s domicile.

This argument was around well before Goff J’s decision in In re B(S), and survives to an extent in the more recent academic literature. (Footnote: ⁵ ) In a case note, English Adoption of Foreign Children, (1968) 31 MLR 219, L J Blom-Cooper questioned whether Goff J had any jurisdiction to dispense with the natural father’s consent, doubting whether there was anything in the 1958 Act sufficiently compelling to displace what he called this basic rule of jurisdiction. Graveson, Conflict of Laws: Private International Law, 1974, p 381, said that it might be suggested that the English court in exercising jurisdiction should apply the domiciliary law or laws of both the adopter and the child. In his Comparative Conflict of Laws: Selected Essays, 1977, Vol 1, p 110, he commented that “While the Acts are silent on any question of choice of law, it is more probable than desirable that such choice would be in favour of English Law.” Anton’s Private International Law, ed 3, 1990, p 866, asserts as the “principled” view that regard should be paid to the child’s personal law, notably the law of his domicile. Cheshire, North and Fawcett, Private International Law, ed 14, 2008, p 1158, state that “In the absence of an express choice of law rule in the 2002 Act, the law of the forum must be assumed to apply.” They go on to say, however, that “The status attributed to a child in his domicile of origin is entitled to universal respect. It is, therefore, undesirable for the English court to make an adoption order which claims to destroy that status and to substitute another that is fundamentally different.” Referring to the natural parents, they question (p 1159) whether an order which deprives them in England of the status of parent should be made without consideration of the effect of the adoption order under the law governing their status, adding that not only a child but also a parent can “limp.” Dicey, Morris and Collins, para 20-107, say “it is arguable that the need for, and the grounds for dispensing with, their agreement should be regulated by the law of their domicile or habitual residence.”

I refer to these passages not by way of exhaustive analysis but to illustrate a variety of views which, although taking as the starting point the principle of universality I have referred to in paragraph 96 above, come to different conclusions, some pointing to the relevant foreign law as being that of the child, others to the relevant foreign law as being that of the natural parents.

With all respect to the views of these very distinguished academic writers, there is nothing in them which persuades me that Goff J’s analysis in In re B(S) is other than entirely correct. In my judgment, the most convincing academic analysis is that of Kahn-Freund, Growth of Internationalism in English Private International Law, 1960, pp 62-66. He pointed out that, according to English law, adoption does not, as in some other countries, result from an act inter partes, a private law transaction approved by the state. It results from an administrative act in judicial form. It is the court’s order which alters the status of the child. That being so,

Kahn-Freund’s analysis, as Goff J pointed out in In re B(S), 210, is too narrow insofar as it asserts that the English court is not concerned with the foreign law at all. As we have seen, Goff J’s view, with which I agree, is that the foreign law is an important factor to be taken into account in considering the welfare of the child; not, I should add, by virtue of the foreign law but rather because English law requires the court to do so. But subject only to that qualification, Kahn-Freund’s analysis is, in my judgment, convincing in explaining why for all other purposes the English court applies English law and not the foreign law. Goff J, after all, was clear that the foreign law does not go to jurisdiction nor is there any question of applying the foreign law, whether substantive or procedural. I agree.

As we have seen, section 1(4) of the 2002 Act provides that:

It cannot be emphasised too much that the court in such a case must give the most careful consideration, as must the children’s guardian and all the other professional witnesses, in particular to those parts of the checklist which focus attention, explicitly or implicitly, on the child’s national, cultural, linguistic, ethnic and religious background. Moreover, it must always be remembered that, in the context of such factors, the checklist demands consideration of the likely effect on the child throughout her life of having ceased to be a member of her original family. Mere lip service to such matters is not enough. The approach, both of the witnesses and of the judge, must be rigorous, analytical and properly reasoned, never forgetting that adoption is permissible only as a “last resort” and only if a comprehensive analysis of the child’s circumstances in every aspect – including the child’s national, cultural, linguistic, ethnic and religious background – leads the court to the conclusion that the overriding requirements of the child’s welfare justify adoption.

In Re CB (A Child) [2015] EWCA Civ 888, a case involving a Latvian child, I said this (para 84):

I went on (para 85) to say that everyone concerned with such a case needs always to remember the powerful point made by Mostyn J in the passage from his judgment in Re D (Special Guardianship Order) [2014] EWHC 3388 (Fam), [2015] 2 FLR 47, para 1, which I have already quoted. I added:

I should also refer in this context to what I said in Re J and S (Children) [2014] EWFC 4, para 36:

As we have seen, in In re B(S) Goff J described the domiciliary law as an important factor to be taken into account in considering whether the proposed order will be for the welfare of the infant. He said (212):

He continued:

I agree with Goff J’s analysis and conclusion. Unless the foreign country is one which, under international Convention, is bound to recognise an English adoption order, the English court will need to address the issues identified by Goff J, having ensured that it has the necessary evidence to enable it to do so.

Article 15(1) of BIIA provides as follows:

There is much English learning on the meaning and application of Article 15(1). I can start with the summary I set out in Re M (Brussels II Revised: Art 15) [2014] EWCA Civ 152, [2014] 2 FLR 1372, para 54:

I went on to emphasise (para 58) how vital it is that the Article 15 issue is considered at the earliest opportunity, that is when the proceedings are issued and at the case management hearing. I repeated what I had said in Re E, paras 35-36:

The reason why there is this need for an early consideration of Article 15 was well explained by Moylan J in Leicester City Council v S and others [2014] EWHC 1575 (Fam), paras 8-9:

There are four points that need to be added to the summary in Re M.

The first is that, without in any way wishing to erode the imperative need for the Article 15 issue to be considered at the outset of the proceedings, there is no doubt that, as a matter of law, it is open to the court to consider the matter “at any stage of the proceedings” as Thorpe LJ put it in Bush v Bush [2008] EWCA Civ 865, [2008] 2 FLR 1437, para 42. See also Pauffley J in Re J (A Child: Brussels II Revised: Article 5: Practice and Procedure) [2014] EWFC 41, para 36. In that case, where it is apparent that the matter had not been properly considered earlier, as it should have been, the question of Article 15 was raised as a preliminary issue at what had been intended to be the final hearing of care proceedings. Pauffley J decided to make a request to Hungary in accordance with Article 15. In the course of explaining why she had come to that view, Pauffley J (para 62) identified as “[w]eighing heavily in the balance and contraindicating a decision to retain the case here” a number of factors including “the absolute requirement of achieving the best possible ‘welfare’ solution rather than striving for speed.” In my judgment, Pauffley J was entitled to adopt that approach and to decide as she did.

The second point is that, although repeat applications for a request under Article 15 are to be deprecated, and if there has been no material change in the circumstances can expect to be summarily refused (see, for example, Re J and S (Children) [2014] EWFC 4, para 22(i)), there may be circumstances in which a renewed application is appropriate.

In Re MP (Fact-finding Hearing: Care Proceedings: Art 15) [2013] EWHC 2063 (Fam), [2014] 1 FLR 702, Theis J ordered an Article 15 request for transfer after the conclusion of a fact-finding hearing and, indeed, having refused such an order at an earlier stage in the proceedings though directing it to be reconsidered at the conclusion of the fact-finding hearing. Her reasoning (para 45) is illuminating and compelling:

I have no problem with Theis J’s approach and decision in the circumstances of that particular case, though it will only be in exceptional circumstances that an Article 15 request will be considered after the conclusion of a fact-finding hearing: compare Re M (Brussels II Revised: Art 15) [2014] EWCA Civ 152, [2014] 2 FLR 1372.

The third point is this. As was made clear in Re M (para 27), the need for judicial continuity will be usually a weighty factor in determining whether or not to make an Article 15 request. But just how weighty will, in the nature of things, depend upon the circumstances of the particular case.

The final point is this. Consideration of the issues arising under Article 15, as Re M makes clear, requires an appropriately summary process, measured in hours not days and not dependent upon a profound investigation of the evidence. So the evidence must be kept within strict limits. The matter should be dealt with quickly and without oral evidence. Reference to either the burden of proof or the standard of proof is neither necessary nor helpful; as to the first because the matter is one to be considered by the judge whether or not any application has been made, and as to the second because, except in relation to factual matters arising under Article 15(3), which are rarely in dispute and readily capable of ascertainment when they are, the essential exercise under Article 15 is, as I have said, one for judicial evaluation. That said, the judge must, at the end of the day be satisfied that the grounds for making an Article 15 request are made out and that, as a matter of judicial discretion, the request ought to be made. In practice, as the cases we have been taken to well illustrate, this has not given rise to any difficulty. If some touchstone is needed, the question is not one of burden of proof or standard of proof but, rather, which side has the better of the argument.

I return to Judge Bellamy’s judgment.

Judge Bellamy began this part of his judgment (Re J and E, para 68) by setting out Article 15. He noted (para 69) that recent authorities make clear that applications under Article 15 are fact-sensitive. He observed (para 70) that in terms of elucidation of the underlying principles it was unnecessary to look further than what I had said in Re M, para 54, a passage he set out in full. He went on (para 72) to explain why, in the event, he had decided to determine the Article 15 point after hearing the evidence. I have already set this out (see paragraph 59 above).

Judge Bellamy then turned (para 73) to consider the timing of the mother’s renewed application under Article 15. He referred to Pauffley J’s judgment in Re J, para 45, where she had said:

Judge Bellamy then turned (para 74) to consider what he described as “the unusual position in which the court finds itself as a result of the decision by Sir Peter Singer to refuse the mother’s earlier application under Article 15 but to leave open the opportunity for her to renew her application later.” He continued:

Judge Bellamy’s approach to these preliminary matters was criticised before us both by the local authority and by the children’s guardian, although as he noted in his judgment (Re J and E, para 72) they had both been content for him to proceed as he did. Their complaint is, in substance, that it was far too late in the day for the court to be considering a transfer, at a time when the judge was ready to give judgment on the welfare aspect of the case even though, I emphasise, he had not in fact done so and had therefore made no findings. It is also said that it was wrong for Judge Bellamy to re-open a matter concluded by Sir Peter Singer’s earlier judgment. The children’s guardian goes so far as to submit that the judge’s decision was per incuriam.

The last point has no basis either in the terms of Article 15 or in the case-law to which I have referred. As a matter of vires, an Article 15 request can be made, as we have seen, at any stage in the proceedings. The argument based on Sir Peter Singer’s judgment founders, in my judgment, on the facts (a) that Sir Peter had explicitly said that the matter could be reconsidered, (b) that Hogg J and Russell J had each made orders contemplating a further application, (c) that none of those orders was ever challenged by way of appeal, and (d) that such a reconsideration is, as Theis J’s judgment in Re MP shows, not necessarily impermissible. The more general complaint, that it was simply too late to order a transfer, has more plausibility until one remembers the exceedingly unsatisfactory state of affairs in which Judge Bellamy found himself, unable, because of a failure by counsel, to proceed as Russell J had envisaged.

In my judgment, Judge Bellamy made the best he could of the circumstances in which he found himself. His reasoning (Re J and E, paras 72-75) is compelling. He was justified in proceeding as he did and for the reasons he gave. There is no substance in these complaints.

These matters out of the way, Judge Bellamy came at last, as he put it, to the issues arising for determination under Article 15. He addressed each of the three questions in turn. First, Do these children have a particular connection with Hungary? The answer was obvious (para 80):

Judge Bellamy then turned to the second question, Is the Hungarian court better placed to hear this case? Addressing this question he said (para 81), referring to Re M, that the approach must be evaluative, weighing the competing arguments as between the Hungarian court and the English court being better placed and adopting a balance sheet approach.

He began by setting out (para 82) the arguments which, he said, supported a finding that the Hungarian court is the better placed. The passage is long, but needs to be set out at some length:

Judge Bellamy then turned (para 83) to consider the arguments against a finding that the Hungarian court would be better placed. Again, the passage is long but needs to be set out at some length:

Judge Bellamy then turned to consider the question of delay. He held (paras 86-87) that although section 1(2) of the 1989 Act did not apply, “that does not mean that delay is not a factor which may be taken into account,” adding “depending upon the facts of the case, delay may be a relevant factor to be weighed in the balance when determining whether another State is ‘better placed to hear the case’. Whether delay is relevant and, if it is, what weight should be accorded to it are issues to be determined on a case by case basis.” He identified two components of delay (paras 88-91). First, the delay that had already occurred – delay on the part of the local authority before proceedings were issued and then further delay since the proceedings were issued (as he noted, judgment was being handed down during week 43) – and, secondly, the inevitable further delay in the event of a transfer under Article 15. His conclusion (para 92) was that

His eventual decision (para 93) was as follows:

Judge Bellamy then turned to the third question, Is a transfer of the proceedings to Hungary in these children’s best interests? Holding that it was, he said (para 95):

Finally, Judge Bellamy turned to the question of discretion. He said (paras 97-98):

He concluded therefore (para 99) that a request be sent to the HCA for the Hungarian court to assume jurisdiction.

The local authority and the children’s guardian make common cause in criticising both Judge Bellamy’s conclusion and the analysis that underlay it. Because their contentions and the arguments they rely upon cover much the same ground there is no need to consider them separately. I shall deal with them together. Their criticisms are lengthy and of varying degrees of significance. I shall therefore concentrate on the key strands of the argument, though making clear that I have had all their points very much in mind.

I can summarise the key strands of the argument as follows:

Judge Bellamy improperly elided, indeed conflated, the second and third of the questions he had to address.

He improperly treated the ultimate discretionary issue as largely concluded by his answers to the second and third questions.

In his consideration of the second question, he (a) failed to explain how the foreign court would be “better placed”, given that he had heard all the evidence going to welfare, (b) failed adequately to take into account the fact that the Hungarian authorities had no previous knowledge of the family and that the witnesses, and the professionals who have assessed the parents, are all in this country, (c) failed adequately to take into account the advantages of judicial continuity deriving from the fact that he had heard all the evidence, (d) failed adequately to consider whether in fact any further assessments would be required (not least given the stance of the HCA, indicating its view that they were not), (e) failed to address the reality that there is no family member in Hungary who is able and willing to look after the children (who will accordingly pass into foster care), and (f) failed to address the fact that, seemingly, if there were an Article 15 transfer, the decision in Hungary would be taken not by a court but by an administrative body. It was said that the process in Hungary might not comply with Articles 6 and 8 of the Convention and that the mother’s argument that it must be assumed that the Hungarian process will be Article 6 and 8 compliant merely assumes what it asserts.

In considering the third question, he failed adequately to address the question of the children’s welfare.

He failed adequately to take into account the evidence he had heard; his approach to the issue of delay was flawed.

In relation to the fourth of these contentions, it is important to see how the point was put by the local authority. It is said that Judge Bellamy: failed “to appreciate … the fact that only by retaining jurisdiction could the current placement … be considered as an option for the children’s placement throughout their minority, and that, by declining jurisdiction, that option would immediately be removed as a possible future placement for the children”; that he failed “to consider … the likely profound deleterious effect on the children’s welfare of a summary removal from their psychological parents” in what the children’s guardian characterised as “a total uprooting … to a completely strange environment”; and that he failed “to consider the immediate and future impact on the children’s welfare of the extinguishing of all prospect of being parented throughout their minority by these carers”. In its skeleton arguments, the local authority submitted that the “judge could not reasonably ignore the prospects of the foster parents becoming adopters” and complained that the judge “makes no reference to the necessity for (or even the desirability of) adoption.” It is further said that Judge Bellamy determined the issue without having adequate information about the foster placement in Hungary being proposed by the HCA.

In my judgment, none of these points, whether taken individually or together, suffices to justify our interfering with Judge Bellamy’s decision and I would decline to do so.

I shall take the various points in turn

So far as contention (i) is concerned, the authorities recognise the reality that the questions of “better placed” and “best interests” are intimately connected. As Ryder LJ said in Re M, para 19:

So far as concerns contention (ii), Judge Bellamy was proceeding on a basis entirely consistent with authority, including the one case to which he made explicit reference (Re J and E, para 97). In my judgment, his approach was sound in law and justified in the circumstances as he had evaluated them.

Much of contention (iii), on close analysis, amounts to little more than an attempt to reargue the “better placed” issue on the facts. Two of the matters relied on can be disposed of at the outset. In relation to judicial continuity, it will be seen that this was a factor carefully evaluated by Judge Bellamy. In this case there were two factors which plainly made the point less weighty than would often be the case. First, there had been, as Judge Bellamy noted, precious little judicial continuity. Secondly, it must be remembered that the finding of fact hearing before Hogg J concluded without the hearing of any evidence. In my judgment, on this issue Judge Bellamy was entitled to decide as he did. Nor, in my judgment is there any merit in the point that the decision in Hungary will be taken not by a court but by an administrative body. Article 2(1) of BIIA defines the term ‘court’ as “cover[ing] all the authorities in the Member States with jurisdiction in the matters falling within the scope of this Regulation pursuant to Article 1.” Article 2(2) defines the term ‘judge’ as “mean[ing] the judge or an official having powers equivalent to those of a judge in the matters falling within the scope of the Regulation.” Moreover, the suggestion that the process in Hungary might not comply with Articles 6 and 8 of the Convention cuts across the fundamental principle (Re M, para 54(v)) that it is not permissible for the English court to enter into a comparison of such matters as the competence, diligence, resources or efficacy of the courts of the other State.

Contention (iv) is, with all respect, based in significant part upon a mis-reading of the authorities, Re M in particular, which explain the attenuated ambit of the welfare investigation required under Article 15 and the irrelevance of the fact that a particular option available to the English court (for example, the making of a non-consensual adoption order) is not available to the foreign court. In my judgment, Judge Bellamy, when addressing the issue of “best interests”, asked himself the right question, directed himself to the relevant factors and was not required, as the local authority asserts, to address himself to the “desirability of adoption.” What he was required to consider, and what he did consider, was whether it was in the children’s best interests for the case to be determined in another jurisdiction. That is quite different from the substantive question in the proceedings, ‘what outcome to these proceedings will be in the best interests of the child?’

The remaining contentions in (iii) and (v) do not, in my judgment, provide any adequate justification for our interfering with Judge Bellamy’s conclusions. He was entitled to have regard to the various matters to which he drew attention, and the weight to be attached to them was essentially a matter for him in the overall evaluative exercise which it was for him to perform. We would, in my judgment, be going outside the legitimate ambit of our appellate functions were we to interfere.

It is clear that Judge Bellamy, because the point was never brought to his attention, overlooked the impact of Article 1(3)(b). The fact is that it was simply not open to him to request a transfer under Article 15 in relation to the placement order proceedings. But that did not, on a proper reading of Article 15, prevent him requesting a transfer under Article 15 in relation to the care proceedings which, procedurally and substantively, were quite distinct from and, logically and legally, antecedent to, the placement order proceedings. There was nothing inappropriate, let alone, as suggested by the local authority, unworkable or unlawful in requesting a transfer in relation to the one set of proceedings (the care proceedings) to Hungary while retaining the other (the placement order proceedings), which would necessarily remain dormant, stayed in England, pending the outcome of the proceedings in Hungary.

For the purpose of Article 15, “the case” was the care proceedings, to which alone BIIA applied; and the “substance of the matter” was likewise, in my judgment, the welfare and other issues arising in the care proceedings. That “case” was quite distinct from the “case” in relation to the placement order proceedings, just as the “substance of the matter” in relation to the care proceedings was quite distinct from the “substance of the matter” in relation to the placement order proceedings.

The consequence is that (a) the care proceedings are stayed in consequence of the transfer under Article 15 and (b) the placement order proceedings, which are of their nature consequential upon the care proceedings, are stayed in consequence of the stay of the care proceedings.

It has been argued that Judge Bellamy’s failure to appreciate the impact of Article 1(3)(b) vitiates or undermines his decision to request a transfer under Article 15 in relation to the care proceedings. I do not agree. Neither as a matter of law or proper approach nor on the facts or in the light of his analysis of the issues does this failure in relation to the future of the placement order proceedings impact upon Judge Bellamy’s analysis and decision in relation to the future of the care proceedings.

There is one final matter which was brought to our attention after the hearing: the fact that the local authority decision-maker has now approved the children’s foster parents as prospective adopters for children having the children’s characteristics. This touches on a matter to which Judge Bellamy drew attention (Re J and E, para 82(vi)). But I do not accept the local authority’s contention that this reinforces and adds to the factors which tip the balance towards the continued hearing of the case in this country. It does not.

Before leaving this case there are two aspects of the proceedings to which I must draw attention for each, in my judgment, merits criticism. Steps must be taken as a matter of urgency to ensure that there is no repetition ever again.

By way of introduction, I repeat that J and E have been in foster care since May 2013 and that the proceedings began in January 2014. By the time the final hearing commenced before Judge Bellamy in November 2014, the children had been in foster care for the best part of 18 months and the proceedings themselves had been on foot for a little over 10 months. Recognising that for too much of the time the parents were not engaging with the process – the details, which I need not rehearse, can be found set out in Judge Bellamy’s judgment – and acknowledging that cases which, like this, necessitate collaboration with foreign authorities and investigations in foreign countries will almost inevitably take longer than purely domestic cases, this is nonetheless a wholly unacceptable state of affairs. After all, when these proceedings began in January 2014 the expectation as set out in the Pilot Public Law Outline was that care cases would be concluded within a maximum of 26 weeks – a requirement which with effect from 26 April 2014 has been given statutory force by virtue of section 32(1)(a)(ii) of the 1989 Act.

Matters were not assisted by the deplorable failure, and not for the first time, of the relevant contractor to provide interpreters for the final hearing arranged for 22 September 2014: compare Re Capita Translation and Interpreting Ltd [2015] EWFC 5. But it is two other matters which I need to focus on.

The first relates to the use by the local authority – in my judgment the misuse by the local authority – of the procedure under section 20 of the 1989 Act. As we have seen, the children were placed in accordance with section 20 in May 2013, yet it was not until January 2014, over eight months later, that the local authority eventually issued care proceedings. Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the use of section 20 as a prelude to care proceedings for a period as long as here is wholly unacceptable. It is, in my judgment, and I use the phrase advisedly and deliberately, a misuse by the local authority of its statutory powers.

As I said in Re A (A Child), Darlington Borough Council v M [2015] EWFC 11, para 100:

Then there was the decision of Cobb J in Newcastle City Council v WM and ors [2015] EWFC 42. He described the local authority (paras 46, 49) as having acted unlawfully and in dereliction of its duty. We had occasion to return to the problem very recently in Re CB (A Child) [2015] EWCA Civ 888, para 86, a case involving the London Borough of Merton. Even more recent is the searing judgment of Sir Robert Francis QC, sitting as a Deputy High Court Judge in the Queen’s Bench Division in Williams and anor v London Borough of Hackney [2015] EWHC 2629 (QB), another case in which the local authority had to pay damages.

Moreover, there has in recent months been a litany of judgments in which experienced judges of the Family Court have had occasion to condemn local authorities, often in necessarily strong, on occasions withering, language, for misuse, and in some cases plain abuse, of section 20: see, for example, Re P (A Child: Use of S.20 CA 1989) [2014] EWFC 775, a case involving the London Borough of Redbridge, Re N (Children) [2015] EWFC 37, a case involving South Tyneside Metropolitan Borough Council, Medway Council v A and ors (Learning Disability: Foster Placement) [2015] EWFC B66, Gloucestershire County Council v M and C [2015] EWFC B147, Gloucestershire County Council v S [2015] EWFC B149, Re AS (Unlawful Removal of a Child) [2015] EWFC B150, a case where damages were awarded against the London Borough of Brent, and Medway Council v M and T (By Her Children’s Guardian) [2015] EWFC B164, another case where substantial damages were awarded against a local authority. I need not yet further lengthen this judgment with an analysis of this melancholy litany but, if I may say so, Directors of Social Services and Local Authority Heads of Legal Services might be well advised to study all these cases, and all the other cases I have mentioned on the point, with a view to considering whether their authority’s current practices and procedures are satisfactory.

The misuse of section 20 in a case, like this, with an international element, is particularly serious. I have already drawn attention (paragraphs 50-51 above) to the consequences of the delay in this case. In Leicester City Council v S & Ors [2014] EWHC 1575 (Fam), a Hungarian child born in this country on 26 March 2013 was accommodated by the local authority under section 20 on 12 April 2013 but the care proceedings were not commenced until 10 October 2013. Moylan J was extremely critical of the local authority. I have already set out (paragraph 115 above) his observations on the wider picture.

What the recent case-law illustrates to an alarming degree are four separate problems, all too often seen in combination.

The first relates to the failure of the local authority to obtain informed consent from the parent(s) at the outset. A local authority cannot use its powers under section 20 if a parent “objects”: see section 20(7). So where, as here, the child’s parent is known and in contact with the local authority, the local authority requires the consent of the parent. We dealt with the point in Re W (Children) [2014] EWCA Civ 1065, para 34:

In this connection local authorities and their employees must heed the guidance set out by Hedley J in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 46:

I add that in cases where the parent is not fluent in English it is vital to ensure that the parent has a proper understanding of what precisely they are being asked to agree to.

The second problem relates to the form in which the consent of the parent(s) is recorded. There is, in law, no requirement for the agreement to be in or evidenced by writing: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 53. But a prudent local authority will surely always wish to ensure that an alleged parental consent in such a case is properly recorded in writing and evidenced by the parent’s signature.

A feature of recent cases has been the serious deficiencies apparent in the drafting of too many section 20 agreements. In Re W (Children) [2014] EWCA Civ 1065, we expressed some pungent observations about the form of an agreement which in places was barely literate. Tomlinson LJ (para 41) described the agreement as “almost comical in the manner in which it apparently proclaims that it has been entered into under something approaching duress.” In Williams and anor v London Borough of Hackney [2015] EWHC 2629 (QB), the Deputy Judge was exceedingly critical (para 65) both of the terms of the agreement and of the circumstances in which the parents’ ‘consent’ had been obtained. There had, he said, been “compulsion in disguise” and “such agreement or acquiescence as took place was not fairly obtained.”

The third problem relates to the fact that, far too often, the arrangements under section 20 are allowed to continue for far too long. This needs no elaboration.

This is related to the fourth problem, the seeming reluctance of local authorities to return the child to the parent(s) immediately upon a withdrawal of parental consent. It is important for local authorities to recognise that, as section 20(8) of the 1989 Act provides:

It follows, in my judgment, that for the future good practice requires the following, in addition to proper compliance with the guidance given by Hedley J which I have set out above:

Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.

The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.

The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.

The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).

Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.’

The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.

The other matter relates to the need for judicial continuity. I have already referred to the delay in this case even after the proceedings were commenced. I cannot help thinking that this was caused in part by the fact that, once the case arrived in the High Court, there was a complete lack of any judicial continuity. There were seven hearings in the Family Division, listed before seven different judges. This is wholly unacceptable. Judicial continuity is a core part of the Public Law Outline, not least because, without it, that other key part of the PLO, robust judicial case management, is compromised. This court would rightly not tolerate such disregard of the PLO in a case being heard in the family court by district or circuit judges. Why should we tolerate it, why should we be any less harsh in our criticism, because this state of affairs has been detected in the Family Division? Acknowledging my own responsibility as President for having allowed such practices to occur, it is time to put a stop to it, and I shall.

In my judgment the appeals should be dismissed.

I have read in draft the judgments of Black LJ and Sir Richard Aikens. I agree with both of them.

I have had the great advantage of reading the President’s judgment in draft and I am grateful to him for covering the issues that arise in these appeals so thoroughly. I agree with him that the appeals should be dismissed for the reasons that he has explained. I do not therefore propose to do more than to draw out, from what he has said, the main strands of the reasoning that has persuaded me that the English court has jurisdiction to make an adoption order in relation to a child who is a foreign national or domiciled abroad and to dispense with the consent of a parent who is a foreign national or domiciled abroad. I do this simply in view of the importance of the matters with which we have been concerned. I also want to underline his observations about the need for Article 15 to be considered at the earliest possible stage.

In this country, adoption is governed by statute, presently the Adoption and Children Act 2002. Adoption orders can only be sought and granted under that Act. The same is true of a placement order, that is an order under section 21 of the Act “authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority” (section 21(1)). It is to the Act that one must look for the jurisdiction provisions governing applications for such orders. Although the Family Law Act 1986 contains provisions which regulate other applications made under the 2002 Act, it does not regulate jurisdiction in relation to applications for an adoption order or a placement order and nor does any other statute.

Section 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. Ignoring, for present purposes, the variations dependent upon whether the application is made by a couple or by one person, it is that an application can only be made by a prospective adopter who fulfils one of the conditions as to domicile/habitual residence in the British Islands.

Section 42(1) to (6) of the Act provide that (normally) an application for an adoption order may not be made unless the child has had his home with the applicant(s) during a prescribed period preceding the application and section 42(7) provides that the order itself may not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant(s) in the home environment have been given to the adoption agency which placed the child or, in other cases, the local authority where the home is. This often (but not always) means that the child has to be within the jurisdiction. I do not intend to be diverted by the question of whether, as a matter of legal technicality, it is appropriate to view the requirements of section 42 as additional jurisdictional provisions as it is not necessary to answer that for present purposes. What matters is that nowhere in the Act is there any requirement relating to the nationality or domicile or, subject to section 42, even 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.

The Act seems to me to be clear about this on its face but there is reassurance available that this interpretation is correct. Turning first to the nationality of the child, the President has charted the legislative course of the present position, explaining how, and why, the original requirement that the child should be of British nationality was lifted after the Second World War. From this, it can be seen that the absence of reference to the child’s nationality in the 2002 Act is no accident but rather the product of a deliberate decision not to restrict adoption to children who are British nationals. The President has also explained that it is compatible with the UK’s international obligations that the adoption of children who are foreign nationals should be permitted and that there are other provisions of domestic law which bolster this.

Turning then to look at the domicile of the child, In re B(S) (An Infant) to which the President has referred in some detail, is important. Goff J there determined that there was jurisdiction to make an adoption order in respect of a child who was assumed to be domiciled in Spain but who was living in England. He relied upon the absence, from the Adoption Act of that time, of any requirement that the child be domiciled here and saw domiciliary law purely as a factor, albeit an important one, in considering whether the proposed order will be for the welfare of the child. Like the President, I agree with his analysis, which is as applicable to the 2002 Act as it was to the 1958 Act.

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. They may protest that they are nationals of/habitually resident in/domiciled in another country and that their status and that of their child can only be changed in accordance with the law of that country, so the English court cannot dispense with their consent and/or remove from them the status of parent. The President has looked at and discussed such arguments in his section entitled Adoption: applicable law - the contrary arguments starting at paragraph 93. The answer to them, to my mind, is that adoption is a creature of the 2002 Act and, if that Act confers the power to do so, then the English court can do so, making an adoption order which is valid within this jurisdiction. Putting it another way, English law is the applicable law in determining the adoption application, and that includes the provisions of section 52 of the 2002 Act as to dispensing with parental consent. 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. I will return to this shortly.

So far, I have proceeded upon the basis that the issue of the parents’ consent arises at the stage of the making of the adoption order. In this event, the court’s jurisdiction is dictated by section 49, section 47 sets out the requirement that either the parents consent or their consent is dispensed with, and section 52 regulates the process of dispensing with consent. It is possible, however, for the issue of consent to arise instead at the earlier stage of an application for a placement order. Section 21 is less obviously a jurisdiction provision than section 49 but I have concluded that it, together with section 22, must nevertheless be what governs the English court’s jurisdiction to grant a placement order. There is no other obvious candidate. As material, section 21 provides:

Section 22 is the section which dictates when a local authority must, or may, apply for a placement order in respect of a child. Applications for placement orders are governed by FPR 2010 Part 14, and Rule 14.3 stipulates, referring to section 22, that the applicant for a placement order is “a local authority”. What I think emerges from all of this is that the court has jurisdiction to make a placement order on the application of a local authority which fulfils the conditions set out in section 22. A “local authority” is defined in section 144 in terms which appear to confine this to a domestic local authority, which is entirely consistent with the provisions of both section 21 and section 22.

Once the jurisdiction to make a placement order is established, the conditions for the making of the placement order are dictated by the 2002 Act, whatever the foreign connections of the parent, and the path leads back, if the parents do not consent, to section 52.

It is possible to mount an argument to the effect that the court would not have jurisdiction to make a placement order unless it had jurisdiction to grant a care order by virtue of the provisions of BIIA and therefore that no placement order could be made unless the child was habitually resident here at the time of the application but, for reasons I will explain, I would reject it. To explain this, I return to section 21(2) which sets out three alternative conditions for the making of a placement order. The first situation in which the court can make a placement order is where the child is already subject to a care order (section 21(2)(a)) and, in that event, it is likely that the child, who must have been habitually resident here when the care order was sought, in fact remains habitually resident here when it comes to the placement order. However, section 21(2)(b) permits an order to be made where “the court is satisfied that the conditions in section 31(2) of the 1989 [Children] Act (conditions for making a care order) are met” and it is possible that, in this situation, the child may not be habitually resident here at the relevant time. It could be argued that the “conditions for making a care order” referred to in section 21(2)(b) include the jurisdictional conditions for making such an order as well as the substantive conditions, thus importing the requirement that the child is habitually resident here when the placement order is under consideration, because only then could the court be satisfied that the conditions for making a care order were satisfied. That would be an odd consequence, given that placement orders are outside the scope of BIIA but would, on this analysis, by an indirect route, be regulated by its provisions. I would not, therefore be inclined to accept this interpretation and I do not feel constrained to do so, given that it is possible to interpret section 21(2)(b) as requiring only that the substantive conditions for the making of a care order are met. This is, it seems to me, both the more obvious and the more sensible construction of the subsection, particularly as it is to the conditions “in section 31(2)” that reference is made.

I said that I would return to the relevance of the parents’ foreign connections and I need to do so both in the context of an adoption application and of a placement order application.

Goff J said in In re B(S), in a passage quoted by the President at paragraph 88 above, that it was not necessary to prove what the child’s domicile actually is or to go into the adoption laws of the relevant foreign country because the child’s domicile is not a jurisdictional requirement and nor is the English court applying foreign law in determining the adoption application. I agree with Goff J that strict proof of domicile/domiciliary law may not be necessary for the reasons he gave. However, it seems to me imperative that, when considering whether or not to make an adoption order, the court should consider what links the child has to other countries (perhaps especially, but not necessarily only, in terms of domicile or nationality), 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. At paragraph 104 et seq, the President has set out and commented upon the checklist in section 1(4) of the 2002 Act and I would endorse what he has said about it. Quite apart from the express terms of the checklist which focus attention on the child’s background, section 1 of the Act is quite wide enough to enable, indeed require, the court to consider and weigh in the equation matters such as the possibility of a “limping” adoption order which, although fully effective in this country, might be ineffective in other countries that the child and his adopters may wish or need to visit. By way of practical example, suppose that the child and his adoptive parents return to the country of which he and his natural parents are/were nationals in order to explore his cultural roots; would the adoption order be recognised there and if not, what consequences could flow? 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.

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.

I need say very little about Article 15 as it has been comprehensively covered by the President. I think it is worth stressing two things, however:

Article 15 is not a provision which facilitates the transfer of particular proceedings, as such, to another jurisdiction. It cannot be, because other jurisdictions do not share our child protection arrangements. What is transferred is, putting it bluntly, the problem, for which the other jurisdiction will, if the transfer is made, take responsibility, leaving our proceedings either stayed or discontinued.

It is vitally important that if there is going to be a transfer, it happens as soon as possible. Things are only likely to get more difficult if this is not done, as Moylan J so neatly explained in Leicester City Council v S and others from which the President quoted at paragraph 115 above.

I have read the magisterial judgment of the President and the penetrating comments of Black LJ. I completely agree with both judgments. I have only become re-acquainted with the details of family law since joining the Court of Appeal in 2008 and so it would be presumptuous of me to try and add a supplementary judgment to the full analysis that the President and Black LJ have undertaken in relation to the fundamental and difficult issues that have been raised by this case. However, I will, in a dogmatic and unargued way, give my answers to the principal questions that have to be decided in this case. I will use the abbreviations adopted by the President.

The questions and my answers are:

Do the courts of England and Wales have jurisdiction to make placement and adoption orders in respect of children who are not UK citizens? Answer: yes, as a matter of construction of the 2002 Act.

What is included in the scope of BIIA Art 1(1)(b) and excluded from it by virtue of Art 1(3)(b)? Answer: BIIA covers care orders for children but excludes applications for placement orders (as being “preparatory to adoption”) and adoption orders.

What type of proceedings can be the subject of a “transfer order” under Art 15(1) of BIIA? Answer: care proceedings but not placement/adoption proceedings.

What, upon the correct construction of Art 15(1), are the requirements before an English court (being the court having “jurisdiction as to the substance of the matter”) can consider making a “transfer order”? Answer: (a) the child must have a “particular connection” with the other Member State; (b) the court of that Member State has to be better placed to hear the case – that is better placed to determine the issues in hand, viz. the care proceedings relating to the child; and (c) it has to be in the best interests of the child to make the transfer; (what has, in some cases, been referred to as “the attenuated welfare test”). However, even if all three of these requirements are fulfilled, there remains a residual discretion in the English court on whether or not to make the transfer, as per Art 15(1)(a) or (b). The fact that the HCA has already accepted jurisdiction cannot affect the ability of the English Court of Appeal reconsidering the whole matter on appeal.

Given the circumstances of the present case, what is the consequence of the fact that Judge Bellamy did not appreciate the effect of Art 1(3)(b) of BIIA, with the result that he did not, in fact, have jurisdiction to transfer the placement/adoption proceedings? Answer: his conclusion on the transfer of the care proceedings can still stand (unless wrong); but his order in relation to the transfer of the placement/adoption proceedings must be set aside as he had no jurisdiction to make it.

Were the judge’s conclusions on any of the three requirements under Art 15(1) wrong? Answer: no. The judge made a very careful evaluation; he did not err in principle; he left out no relevant factors; he did not consider any irrelevant ones and the overall result was not perverse. The new facts set out in the email of 12 May 2015 concerning the carers do not make any difference to that evaluation.

What is the consequence of the decisions above? Answer: The placement/adoption proceedings must be stayed as must the care proceedings. The transfer order per Art 15(1)(a) remains.

There is one further comment I wish to make. Both the President and Black LJ have emphasised that when an English court is considering making a placement order or adoption order in respect of a foreign national child, it must consider, as part of the “welfare” exercise under section 1(4) of the 2002 Act, the possibility of the result being a “limping” adoption order. By that they mean an adoption order which, although fully effective in this country, might be ineffective in other countries that the child and his adopters may wish or need to visit. There is a danger that natural parent(s) (or perhaps other parties) who oppose the adoption, will attempt to turn this factor into a major forensic battle by engaging foreign lawyers to give opinions on the effectiveness (or lack of it) of an English adoption order in other countries, in particular the state of the nationality of the natural parent(s). Those legal opinions might then be challenged and there is the danger of that issue becoming expensive and time consuming “satellite litigation”. I hope that this can be avoided by a robust application of the Family Procedure Rules relating to expert opinions.