E (Scottish Adopters: English Adoption Proceedings)

E is 2½ years old. When she was 6 months old, she was made the subject of a final Care Order (section 31 Children Act 1989) and Placement Order (section 18 Adoption and Children Act 2002: ‘ACA 2002’) in proceedings conducted in the Family Court in England. Some four months later, she was placed for adoption in Scotland. Her prospective adopters live in Scotland. I am satisfied on the evidence that at least one of them is domiciled in Scotland, and they have both unquestionably been habitually resident in Scotland for many years. They have previously adopted E’s older full sibling; E and her sibling have established a strong and close bond.

The adopters have now applied for an adoption order in respect of E. The application is made under section 50 ACA 2002 (adoption by a couple). They have issued their adoption application in the Family Court in England. At a case management hearing, a preliminary question arose for determination – namely whether an adoption application in respect of a child placed for adoption in Scotland with Scottish adopters can be determined in England.

This judgment sets out my reasons for the conclusion that it can. I am of the view that in these circumstances, the Scottish adopters would in fact have the option of pursuing their application in either Scotland or England. I indicated this outcome to the parties at the conclusion of the case management hearing.

Within the United Kingdom, there are, of course, three quite distinct legal jurisdictions: (i) England and Wales, (ii) Scotland, and (iii) Northern Ireland. The ACA 2002 currently contains the statutory basis for adoption in England and Wales; the Adoption and Children (Scotland) Act 2007 (‘AC(S)A 2007’) contains the equivalent provisions in Scotland. I have annexed a table to this judgment comparing those statutory provisions of the ACA 2002 (England) and the AC(S)A 2007 (Scotland) which are relevant to the issue before me; it will be seen that they effectively mirror each other.

An adoption order is defined, in English law as:

“… an order made by the court on an application under section 50 or 51 giving parental responsibility for a child to the adopters or adopter” (see section 46(1) ACA 2002).

It operates (per section 46(2) ACA 2002) to extinguish:

“(a)

the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the order,

(b)

…

(c)

any order under the Children (Scotland) Act 1995 (c 36) other than an excepted order,

[(ca) any child assessment order or child protection order within the meaning given in section 202(1) of the Children's Hearing (Scotland) Act 2011,]

…”

Equivalent definitions are given in the AC(S)A 2007 at section 28(1) and section 35(2)(a) (see below).

The crucial section for determining jurisdiction in this case is section 49 ACA 2002; this provides that “[a]n application for an adoption order may be made by (a) a couple…” provided that the applicants can satisfy one of a number of pre-conditions. Of particular relevance are those conditions set out in section 49(2) and 49(3):

“(2)

The first condition is that at least one of the couple (in the case of an application under section 50) or the applicant (in the case of an application under section 51) isdomiciled in a part of the British Islands.

(3)

The second condition is that both of the couple (in the case of an application under section 50) or the applicant (in the case of an application under section 51) have beenhabitually resident in a part of the British Islands for a

period of not less than one year ending with the date of theapplication.” (emphasis added)”

Reference in section 49 ACA 2002 to “British Islands” means “the United Kingdom, the Channel Islands and the Isle of Man.” (Interpretation Act 1978, Schedule 1, paragraph 1). It is notable that the AC(S)A 2007 has mirror provisions (section 29(2) and section 30(6) ibid.).

It isclear, therefore, that the ACA 2002 gives the Family Court in England and Wales jurisdiction to make an adoption order in favour of applicants who satisfy one or other of the section 49 ACA 2002 criteria set out in para.[6] above. The prospective adopters in this case in fact satisfy both conditions as I indicated at para.[1] above. Indeed, they previously adopted E’s sibling in a Family Court in England without issue.

It is equally clear that the AC(S)A 2007 would give the Court in Scotland jurisdiction to make an adoption order in favour of applicants who satisfy one or other of the section 29 AC(S)A 2007 criteria (in similar terms to those set out in para.[6] above). As the prospective adopters satisfy these conditions, they could therefore have issued their application in Scotland had they chosen to do so.

All of this seems clear enough. Should there be any doubt, it is dispelled, I believe, by the decision of the Court of Appeal in Re N (Children: Adoption: Jurisdiction) [2015] EWCA Civ 1112, a case in which the Court of Appeal considered

Black LJ (as she then was) in the same case summarised the position to like effect at [177]:

“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 madeby a prospective adopter who fulfils one of the conditions asto domicile/habitual residence in the British Islands.”

(emphasis by underlining).”

Furthermore, the comparative statutory provisions both north and south of the Scottish border were specifically considered by Sir James Munby P in a brace of cases in 2017:

To underline that point, a review of the table annexed to this judgment will reveal the high degree of mutuality of these arrangements between the two jurisdictions. Notably, under section 31(9)(b)(ii) AC(S)A 2007 the Scottish Court can make an adoption order where the child has been placed for adoption under a Placement order in England and Wales under section 21 ACA 2002.

The Court of Appeal in Re N were concerned with creating a situation in which the adoption order would not be recognised in the country of the child’s domicile, or in this case her habitual residence. They referred to Goff J in Re B(S) (An Infant) [1968]

No such risk arises here: in this case, the situation is covered by section 77 of the AC(S)A 2007, which provides:

“(1)

An adoption order (within the meaning of section 46(1) of the 2002 Act) has effect in Scotland as it has in England and Wales but as if any reference to the parental responsibility for the child were to the parental

responsibilities and parental rights in relation to the child.”

In summary, the position in this case therefore is:

As it is established that either jurisdiction could entertain the application, an issue of forum conveniens then arises. The adopters have chosen to issue in the English Court, and by inference it is not inconvenient to them to travel to the court where the application has been issued. As the birth parents have indicated their intention to apply for leave to oppose the adoption, and as there is no other contentious element to this proposed application, it is appropriate in my judgment that the application should be allowed to proceed in this jurisdiction. No party raises any dispute about this.

I conclude this short judgment by extending my thanks to the solicitor advocates for the professional parties in this case, who have presented the arguments in writing and orally with great ability.

That is my judgment.