FAS v Secretary of State for the Home Department & Anor

This is an appeal by FAS against the judgment of Mostyn J – [2015] EWHC 622 (Fam) - in which he refused an application to make an adoption order in respect of MW, a young person now aged 18 of Pakistani nationality, by which FAS would become his adoptive mother. FAS is MW’s first cousin once removed, who is a British citizen. The judge arrived at this result on the basis of his interpretation of section 1 of the Adoption and Children Act 2002 (“the 2002 Act”). The Secretary of State for the Home Department has an interest in the case because she maintains that the making of the adoption order which is sought would have the effect of improperly subverting immigration controls and would be wrong in principle where the sole benefit which MW is intended to gain from the arrangement is the acquisition of British citizenship through the operation of section 1(5) of the British Nationality Act 1981 (“the 1981 Act”). The Secretary of State succeeded on this argument before the judge. FAS now appeals to this court.

On the appeal, the Secretary of State also takes, without objection, a point of law not raised below, which is that even if an adoption order were made its effect in the circumstances of MW’s case would not be to confer British citizenship upon MW pursuant to section 1(5) of the 1981 Act. Accordingly, it is said, even if FAS is correct regarding the proper interpretation of section 1 of the 2002 Act, there would still be no proper basis for making an adoption order in this case.

Section 1 of the Adoption and Children Act 2002 provides in relevant part as follows:

Section 49(4) and (5) makes special provision in the context of the 2002 Act regarding the time at which an application for an adoption order should be made and when such an order may be issued by the court, to allow for the effluxion of time while the adoption proceedings in court are ongoing, as follows:

Section 47(9) of the 2002 Act provides that “An adoption order may not be made in relation to a person who has attained the age of 19 years.” This meant that, in view of MW’s age, the hearing of this appeal was treated as an urgent matter and expedition was ordered.

Section 1 of the 2002 Act replaced section 6 of the Adoption Act 1976 (“the 1976 Act”), which provided as follows:

It was this provision which was construed and applied by the House of Lords in a case which is relevant on this appeal, Re B (A Minor) (Adoption Order; Nationality)[1999] 2 AC 136 (“Re B”). Two differences between section 6 of the 1976 Act and section 1 of the 2002 Act may be noted: (i) the “first consideration” of the need to safeguard and promote the welfare of the child in the 1976 Act has become “the paramount consideration” being the child’s welfare in the 2002 Act; and (ii) the period in relation to which the welfare of the child is to be a “first” or “paramount” consideration has changed from “throughout his childhood” in the 1976 Act to “throughout his life” in the 2002 Act. The first change strengthens the weight to be given to the child’s interests in relation to the relevant period in respect of which the obligation to give such weight applies. It is the second change which is important on this appeal.

Section 1(5) and (5A) of the British Nationality Act 1981 provides as follows:

Section 50(1) of the 1981 Act provides that, unless the context otherwise requires, for the purposes of the 1981 Act “minor” means “a person who has not attained the age of eighteen years.” It is not suggested that there is anything in the context to displace this definition. The special definition of “child” set out in section 49(5) of the 2002 Act does not modify the meaning of the different concept, “minor”, which is expressly defined in the 1981 Act. This means that for a person to acquire British citizenship by operation of section 1(5) of the 1981 Act, an adoption order must be made by the court while he is a minor, i.e. a person who has not yet attained the age of 18. This is contrary to the assumption made by the judge in this case (at [3]), without the benefit of argument on the point, that if he made an adoption order in relation to MW on the application of FAS the effect of section 1(5) of the 1981 Act would be to confer British citizenship on MW.

MW was born in Pakistan on 18 November 1996. He was brought up in Pakistan. His parents are separated.

FAS is 44 years old. Her father and MW’s paternal grandfather were siblings. FAS was born in the UK and has British citizenship. She has been separated from her husband for seven years. She has two adult sons with whom she lives in Bradford.

On 18 June 2012 MW’s father, MWA, made an application for entry clearance for a visa for him and MW to make a family visit to the United Kingdom for six weeks commencing in September 2012. FAS was not mentioned in the application.

The judge found that in fact MWA brought MW to the UK for the purposes of adoption: [11]. By section 83(4) and (5) of the 2002 Act, taken with the Adoption with a Foreign Elements Regulations 2005 (SI 2005 No. 392), strict conditions are imposed where such a course is proposed and it is a criminal offence under section 83(7) if a child is brought in for adoption in breach of those conditions. Despite questionable and suspicious aspects in the evidence of FAS, however, the judge found that FAS was not guilty of culpable participation in that plan: [11]. He did not distinctly address the culpability of MW in relation to the plan.

In addition to the provisions of the 2002 Act and these Regulations, paragraph 316A of the Immigration Rules sets out requirements which need to be satisfied on an application for limited leave to enter the UK with a view to settlement as a child for adoption, as follows:

Since the visa application was presented on a completely different basis, no attempt was made by MWA or MW to show that the conditions in paragraph 316A were satisfied. It does not appear that they could have been. In particular, it seems that sub-paragraphs (vi), (vii) and (viii) would have been likely to pose insuperable obstacles. The actual basis on which the application of MWA and MW for leave to enter was presented (for which the stated purpose was a family visit of limited duration) was, on the findings of the judge, a false one.

Visitors’ visas for MWA and MW were issued on 3 July 2012. They were valid until 3 January 2013.

MWA and MW arrived in the UK on 15 September 2012. From 20 October 2012, MW has lived permanently with FAS and her sons.

On 6 November 2012 FAS and MWA attended at the office of FAS’s then solicitors, Ashwells Law LLP. FAS’s solicitor, Mr Iskar Khan, filled out an application seeking an adoption by FAS of MW under the Hague Convention of 29 May 1993 on the Protection of Children and Co-operation in respect of Inter-country Adoption. This was a mistake, because Pakistan is not a party to the Convention, and in these proceedings the application has been treated as a standard non-Convention application to adopt made under the 2002 Act.

On the same occasion, MWA signed a consent to adoption in the prescribed form, which was witnessed by Mr Khan. This consent failed to comply with the requirement under regulation 20 of the Adoption Agencies Regulations 2005 (SI 2005 No. 389) that an adoption consent executed in England be witnessed by a Cafcass officer, and hence was invalid: [15]. It should be emphasised that this requirement is not a simple formality: it ensures that a Cafcass officer has an opportunity to ensure that the relevant parent understands the serious and profound emotional and other consequences of adoption.

On 7 November 2012 the adoption application by FAS was filed at the Bradford County Court. It was formally issued by that court on 13 November 2012. District Judge Lingard ordered FAS to file a statement to explain how MW came to be placed with her, his immigration status, how long he had been in the UK and why there was no consent from MW’s mother.

FAS provided a statement which failed to satisfy the District Judge on the question of the absence of consent from MW’s mother. FAS was ordered to file a further statement to deal with that. In due course, the question of consent by MW’s mother for the proposed adoption was a matter examined in some detail by the judge. In the event, despite some very unsatisfactory and dishonest evidence from FAS, as I read the judgment at [20]-[24] the judge was satisfied that MW’s mother had in fact consented to the adoption by executing a form of consent on 15 May 2014, witnessed by an advocate and Commissioner for Oaths in Pakistan.

Meanwhile, MW failed to return to Pakistan by 3 January 2013 and became an unlawful overstayer without leave to remain. He continued to live with FAS and her sons.

In the circumstances of what appears to have been a flagrant breach of immigration controls, it is not surprising that the Secretary of State has an interest in the outcome of this case.

As noted above, the judge assumed that if he made an adoption order, MW would automatically acquire British citizenship. The judge described this as an “inestimable life-long benefit” and, but for the interpretation he gave section 1(2) of the 2002 Act in light of Re B, he would have felt compelled to make the adoption order which was sought: [51].

This was on the footing that:

on the facts he found, the judge did not regard the adoption application as an “accommodation” application in the terminology used by Lord Hoffmann in Re B, i.e. an application made without any genuine intention on the part of prospective adopters to assume parental responsibility and incorporate the child fully into their family: see [1999] 2 AC at page 141G. Although he noted at [4] that there is something curious about the idea that an adoption order can be made to give “parental responsibility for a child to the adopters” and extinguish the parental responsibility of the natural parents (see the effects of such an order identified in section 46 of the 2002 Act) in respect of a person who has turned 18 and hence become an adult for most purposes, the judge recognised that this is something plainly allowed for under the 2002 Act until the person to be adopted reaches the age of 19; and the judge’s view that the adoption application in this case is a genuine one is implicit in [31]-[32] and [46], and may be inferred from the absence of any rejection by him of evidence to that effect by FAS; and

if the benefit of having British citizenship had to be brought into account for the whole of the remainder of MW’s life by reason of the new formula used in section 1(2) of the 2002 Act (“… throughout his life”), then that was a factor which would compel the making of an adoption order so that MW could receive that benefit, even though he would no longer be under the age of 18 by the time the order was made.

However, the judge avoided this outcome because he construed the new formula in section 1(2) as applying only in relation to the long-term emotional repercussions of the making of an adoption order throughout the child’s life, and not in relation to other benefits accruing throughout the child’s life post minority; in particular, the judge’s view was that it did not apply in relation to any long-term benefits throughout a child’s life associated with becoming a British citizen pursuant to section 1(5) of the 1981 Act: [37]. The judge considered that support for this construction could be derived from use of the same formula in section 1(4)(c) of the 2002 Act, which is concerned with “the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person.” Despite the use of the new formula in the 2002 Act, the judge’s assessment was that Parliament had not changed the law in a material way since the decision of the House of Lords in Re B, which accordingly continued to provide relevant guidance for the application of section 1(2) of the 2002 Act. In Re B the House of Lords had held that in applying section 6 of the 1976 Act “the court will rarely make an adoption order when it would confer no benefits upon the child during its childhood, but give it a right of abode for the rest of its life” (p. 141G-H), and the judge held that the same approach should be applied under section 1(2) of the 2002 Act. Since the judge restricted the application of the new formula in section 1(2) in this way, he held that the benefits associated with becoming a British citizen could not be brought into account for the period after MW became 18. That being so, he found that there was no other relevant benefit at all for MW which would derive from the making of an adoption order, and therefore declined to make the adoption order which FAS sought.

With all respect to Mostyn J, I consider that he erred in a number of respects. First, in my view the judge erred in his interpretation of section 1(2) of the 2002 Act and as regards the significance in the context of that provision of the reasoning of Lord Hoffmann in Re B in interpreting section 6 of the 1976 Act. In my opinion, and contrary to the submission of the Secretary of State, it is not possible to limit the application of the new formula used in section 1(2) in the way the judge sought to do: see below.

Secondly, although it does not matter for the outcome of this appeal, I think that the judge slipped too quickly into assuming that if he was wrong in his interpretation of section 1(2) of the 2002 Act he would be compelled to make the adoption order sought (and, implicitly, that he should dispense with proper and valid consent on the part of MW’s father, MWA, under section 52 of the 2002 Act). Adoption is not a matter of purely material benefits and disbenefits: see e.g. Re IH (a child) (permission to apply for adoption)[2013] EWHC 1235 (Fam) at [92]-[99] per Pauffley J. The potential emotional impact upon a child (not just at the moment of adoption, but later in life as well) of the bringing to an end of one parent/child relationship and its replacement by another may be a highly significant factor. The significance of it may increase where the child is taken from a relationship in one country and made the subject of a new relationship in a different country. Had the application and appeal turned on the assessment of whether the conferral of British citizenship was a benefit of such weight as to justify the making of an adoption order, I would have wished to see a closer examination by the court at first instance of the context and of the non-material, emotional benefits and disbenefits which might be associated with the taking of such a step.

Thirdly, the judge erred in making the assumption he did that if he made an adoption order the effect of section 1(5) of the 1981 Act would be that MW would automatically acquire British citizenship. When the matter was before the judge, MW was already aged 18 and hence was no longer a “minor” as defined for the purposes of the 1981 Act. Therefore, if an adoption order had been made it would not have had the effect of automatically conferring British citizenship on MW. Once this is appreciated, the only benefit in terms of the welfare of MW associated with adoption identified by the judge drops out of the picture. There is no good reason to warrant the making of an adoption order in this case, and it is on this basis – different from the reasoning of the judge - that the appeal must be dismissed.

Mr Rudd, for FAS, sought to argue that even though MW would not automatically become a British citizen if an adoption order were made, nonetheless it would greatly assist him in making an application for leave to remain in reliance on his rights to respect for his private and family life under Article 8 of the European Convention on Human Rights and the Human Rights Act 1998 if the court had recognised his family connection with FAS by making the adoption order, and that this should be treated as a factor indicating that the making of such an order would promote his welfare. If MW obtained discretionary leave to remain, and such leave were sustained over some years, he might become a British citizen by that route.

In my judgment this argument is unsustainable. Such family and private life as MW has established in the UK by living with FAS was formed at a time when it was known that he had only a very limited right to remain in the UK as a visitor for a few weeks, and hence was precarious. Any adoption order would be made after MW became an unlawful over-stayer and was known to be such. On the ordinary principles applicable under Article 8, in a case affected by precariousness of this kind it is only in exceptional circumstances that a right to remain could be established on the basis of private or family life (see e.g. R (Agyarko) v Secretary of State for the Home Department[2015] EWCA Civ 440 at [28]), and there are none here. MW has no prospect of being granted leave to remain on the basis of Article 8 in exercise of the Secretary of State’s discretionary immigration powers, so this factor cannot justify the making of an adoption order in relation to MW.

Although I would dismiss the appeal on the basis of this reasoning, I should explain why I consider that the judge has erred in his interpretation of section 1(2) of the 2002 Act. In my view, the natural meaning of the language used in section 1(2) requires regard to be had to the welfare interests of the child in question as they may be affected “throughout his life” - that is to say, not merely as they may be affected during his childhood, as was the test under section 6 of the 1976 Act. As a matter of language, there is no limitation as regards the nature of the child’s welfare interests which should be brought into account in this way, and none can be spelled out of the context. Given that it is readily possible to envisage things that might be done in relation to a child which may profoundly affect him for good or ill in the part of his life once he ceases to be a child (e.g. whether and how he is educated), it would be arbitrary to try to read down section 1(2) to limit its effect to purely emotional matters in the way that the judge sought to do. The wide ambit of the matters which may be relevant to assessing what promotes the child’s welfare contemplated by section 1(4), as indicated by its opening words (“… among others …”), also supports an interpretation which gives the words in section 1(2) their natural meaning.

I do not think that section 1(4)(c) supports the judge’s narrow interpretation of the phrase “throughout his life” in section 1(2). If anything, it seems to me to point in the other direction. The phrase obviously bears its natural linguistic meaning in section 1(4)(c), meaning that the factor identified has to be brought into account by reference to the effects over the entirety of the child’s life. It would be very odd to give the same phrase a different, more restricted meaning when it is used in section 1(2). There is nothing in section 1(2) to suggest that the phrase only applies in relation to some (or only one), rather than all of the factors which might be found to be relevant to the welfare of a child.

In my view, the reasoning of Lord Hoffmann in his speech in Re B (with which the other members of the appellate committee agreed) supports an interpretation of section 1(2) of the 2002 Act in accordance with the natural meaning of the words used in that provision. The case concerned an application by grandparents under section 6 of the 1976 Act to adopt their grandchild, T, who had only two years of minority remaining, to allow her to acquire British citizenship and avoid deportation, so that she could continue living with them in the UK and continue to attend school here: see p. 140B-D. The judge at first instance made an adoption order, even though the Home Office argued that this would be contrary to immigration policy, on the basis that he could not ignore these welfare benefits to T merely because they were dependent on the acquisition of a right of abode as a citizen: p. 140F-H. The order was set aside by the Court of Appeal on the grounds that in applying section 6 the court should ignore benefits which would result solely from a change in immigration status: pp. 140H-141C. The House of Lords held that this was contrary to the express terms of section 6 and restored the order made at first instance.

Lord Hoffmann held that on the language used in section 6 the court could not ignore the considerable benefits which would have accrued to T during the remainder of her childhood:

The effect of this reasoning is that, in respect of the period in which the child’s interests were to be treated as a first consideration (i.e. “throughout his childhood”, according to the terms of section 6), the interests of the child (including material welfare benefits he would derive as a result of being granted British citizenship) would almost invariably have to be given priority as against the state’s interest in maintaining effective immigration controls. Lord Hoffmann contrasted the position in relation to benefits which would accrue after childhood (i.e. after the period in respect of which the child’s interests were to be treated as a first consideration according to section 6) at p. 142D-F, as follows:

As Lord Hoffmann said at p. 141H-142A, the approach to be adopted under section 6 where the benefits from conferral of citizenship would accrue after the childhood of the adopted person has ended was as follows:

Thus, in relation to benefits for the child which would only accrue in the period after that in which the child’s interests were to be treated as a first consideration, as a matter of interpretation of section 6 there was far greater scope for the state’s interest in maintaining effective immigration controls to be treated as outweighing those matters, and it would ordinarily do so.

Lord Hoffmann’s reasoning in relation to both periods (i.e. benefits accruing during childhood, on the one hand, and benefits accruing after childhood, on the other) was tied to the language and structure of section 6, which gave paramountcy to the child’s interests in the first period but not in relation to the second. In relation to both periods, on the proper construction of section 6 in accordance with the ordinary meaning of the language used in it, Lord Hoffmann treated the practical benefits which would accrue from becoming a British citizen by operation of the 1981 Act as relevant matters to be brought into account in deciding whether to make an adoption order.

On the present appeal Mr Greatorex, for the Secretary of State, submits that the change between section 6 of the 1976 Act and section 1(2) of the 2002 Act cannot be taken to indicate an intention on the part of Parliament to change the presumption in favour of giving greater weight to the state’s interest in maintaining immigration controls with respect to benefits accruing after childhood which had been identified in Re B in relation to section 6. I cannot accept this submission.

Parliament has made a deliberate change in section 1(2) in specifying the period in relation to which the impacts (both positive and negative) of adoption for a child should be brought into account for the purpose of determining what is for the welfare of the child as being “throughout his life”, by contrast with the more limited period specified in section 6 of the 1976 Act (“throughout his childhood”). Apart from this change, the basic structure of section 1(2) remains the same as for section 6, namely that in relation to assessment by reference to the relevant period the child’s interests are treated as paramount or a first consideration and that all practical benefits and disbenefits for the child (including those which would accrue as a result of any automatic conferral of citizenship under section 1(5) of the 1981 Act) are treated as relevant matters. Like section 6 of the 1976 Act, section 1(2) of the 2002 Act cannot be construed as containing any artificial limitation on what types of benefit are capable of counting as a relevant matter when considering whether an adoption order should be made. Therefore, in my view, the points made by Lord Hoffmann in Re B by reference to the then relevant period under section 6 for bringing benefits into account (during childhood) at p. 141C-F, set out above, apply with similar effect in relation to the new relevant period under section 1(2) (throughout the child’s life).

The result of this is that if, after taking account of the practical benefits of adoption for a child throughout his life, it can be seen that it best promotes the child’s welfare that he be adopted by a British citizen so as automatically to acquire British citizenship under section 1(5) of the 1981 Act, the court should ordinarily make the adoption order which is sought. Just as for the first of the periods considered by Lord Hoffmann in the context of applying section 6 of the 1976 Act in Re B, the state’s interest in maintaining effective immigration controls will have very little significance. It will not be appropriate for a court to refuse to make the order as some sort of indirect means of reinforcing immigration controls.

I can readily see that the Secretary of State for the Home Department might be concerned at this result. But if she wishes the courts to have the ability to give greater weight to considerations of immigration policy in the context of deciding whether an adoption order should be made, she will need to persuade Parliament to change section 1 of the 2002 Act to allow that to happen.

In my judgment this appeal should be dismissed, but for reasons different from those given by the judge. The Secretary of State has failed in her primary submission in relation to the proper interpretation of section 1(2) of the 2002 Act, but succeeds in her alternative submission based on the non-applicability of section 1(5) of the 1981 Act on the particular facts of this case.

I agree.

I also agree.