S (Domestic Adoption of Child of Foreign National), Re

This application for an adoption order concerns S, represented through her Children’s Guardian, Ms Kat Smoraczewska, by Ms Kathryn Cronin of counsel. S was born in September 2023 and relinquished at birth by her natural mother, the Second Respondent MM, an Indian national. MM’s engagement with these proceedings has been limited. She has consistently refused to provide information about both the paternal and maternal families in India, including the identity of S’s birth father. Following her relinquishment, S was accommodated by the City Council as a ‘looked after’ child.

On 26th August 2024, the City Council placed S in the care of the applicants, who have been approved as her prospective adopters. The applicants are represented by Ms Siobhan Kelly of counsel. The placement of S with the applicants has been assessed over the course of nearly 12 months. Within this context, S’s proposed adoption is supported strongly by all of the social work professionals and by S’s Children’s Guardian, who concludes that S is “clearly thriving” in the applicants’ care.

Notwithstanding the foregoing position, this matter comes before the court on a contested basis in the context of an intervention by the Secretary of State for the Home Department, represented at this hearing by Ms Jaqueline Julyan SC. Whilst the position of the Secretary of State is comprised of a number of elements, the central argument advanced on her behalf is that, in circumstances where one of the consequences of S’s adoption is that S would become a British citizen, the court should only contemplate an adoption order once the court is satisfied that it has a full understanding of “all the relevant circumstances” with respect to S.

In this case, the Secretary of State argues that there has been a failure to establish S’s nationality (there being an issue between the Secretary of State and the parties as to whether S is an Indian National or currently stateless) and to notify the Secretary of State and (pursuant to Art 37(b) of the Vienna Convention on Consular Relation 1963 (hereafter “the 1963 Vienna Convention”)) the Indian High Commission that S has been relinquished for adoption. The Secretary of State contends that these omissions must be remedied before the court is in a position to consider the merits of the application for an adoption order in this case.

It was plain that overarching the submissions made on behalf of the Secretary of State is a concern that the granting of an adoption order in this case might encourage other pregnant foreign women to come to this jurisdiction to relinquish their children following birth, in order to ensure a better start in life for their child. Within this context, in her Skeleton Argument for the hearing on 3 July 2025, Ms Julyan indicated that:

“13.

The SSHD seeks guidelines, for local authorities, adoption agencies, children’s guardians and the family courts, as to the process to be followed when a child is born of a foreign national in the United Kingdom and is to be adopted (whether consensual or non-consensual).

14.

Consideration should be given to the checks and safeguards to be introduced and the policy considerations to be implemented, when a foreign child (albeit born in the United Kingdom) is placed for adoption in England, for example notifying the SSHD.”

With respect to the position adopted by the Secretary of State, the applicants and the Children’s Guardian submit, with the unanimous support of the social work professionals involved in the case, that all necessary steps have been taken in this case to enable the court to determine what is an application for a domestic adoption order and to grant that order is in S’s best interests. Both the applicants and the Children’s Guardian submit that, in circumstances where S is stateless, the steps contended for by the Secretary of State are not required in the particular circumstances of this case and would result in further and unacceptable delay in finalising an adoptive placement that is obviously meeting S’s welfare needs. Both the applicants and the Children’s Guardian submit that it would be inappropriate for the court to use these proceedings to deal with policy and procedural matters that may arise from the facts of this case, those being matters for Parliament and the Family Procedure Rules Committee respectively.

In light of the foregoing dispute, I listed this matter for hearing to determine the following issues, all parties inviting me to finalise the adoption proceedings if the determination of these issues permits:

In determining these issues, I have had the assistance of Skeleton Arguments prepared on behalf of the applicants, the Children’s Guardian and the Secretary of State for the Home Department, oral submissions and a court bundle of relevant documentation. Given the nature and extent of the issues falling to be determined in this matter, I reserved judgment and now set out my decision and my reasons for it.

This court is acutely aware that the applicants have expended significant emotional and financial capital on these proceedings due to the need for the court to investigate the complex legal issues that arise from the circumstances of S’s birth in this jurisdiction and the issues raised by the Secretary of State. Nothing said in this judgment should be taken as a criticism of the applicants.

MM was born on 12 April 2002 and is now aged 23. As I have noted, she is an Indian national. MM applied on 21 December 2022 to enter the United Kingdom as a student, in order to attend University. She was granted a student visa by the Home Office on 31 December 2022 with an expiration date of 10 September 2024. MM entered the UK in January 2023.

In August 2023 MM presented herself to antenatal services, at which point she was heavily pregnant. MM informed the midwifery services that she did not wish to care for S upon her birth and wanted her to be adopted. S was born in September 2023.

In light of S’s date of birth, no party now seeks to suggest that MM entered the United Kingdom knowingly concealing her pregnancy for the purpose of relinquishing S in this jurisdiction. In the circumstances, I proceed on the basis of MM’s account, given to the allocated social worker and noted in the City Council Adoption Permanence Report dated 5 April 2024, that she only found out about the pregnancy four months into term and whilst already residing in the United Kingdom.

MM requested not to see S when she was born and, following S’s birth, each were placed in separate wards of the hospital. MM further confirmed to the out of hours social worker, who visited her at the hospital, that she wished for S to be adopted. She maintained that she wanted no further contact with S. On 2 September 2023, MM signed an agreement under s.25 of the Children (Scotland) Act 1995 for S to be voluntarily accommodated by the local authority. On that date, MM again confirmed to S’s allocated social worker that she wished for S to be adopted and remained of the view that she did not want contact. The allocated social worker encouraged MM to name S and have some contact with her before she was placed for adoption. On 8 September 2023, MM contacted the allocated social worker and said she would like to have one contact session before S was adopted. After difficulties communicating with MM between 11 and 18 September 2023, MM attended contact with S on 22 September 2023 and on 26 September 2023.

Since the two contacts in September 2023, MM’s engagement has been sporadic. On 2 October 2023, MM attended a Looked After Child Review chaired by an Independent Reviewing Officer and attended by S’s foster mother and the health visitor. MM heard updates from professionals and remained of the view that S should be adopted. On 3 October 2023, MM did not attend an agreed medical appointment for S. The social workers attempted numerous times to contact MM through all viable means including text, email, and phone calls but there was no answer. A letter was sent to MM to book an office appointment, however she failed to attend this. The Alternatives Counselling service had, by this point, attempted to contact MM on multiple occasions but had been unable to speak to her.

On 17 October 2023, MM contacted social workers and stated her phone had been broken and enquired about contact with S. Attempts were made to arrange two sessions of contact on 18 and 27 of October 2023. However, MM was unable to attend due to her university commitments. MM did not engage with social workers during November 2023, despite home visits, phone calls, emails and texts being sent. MM was offered support to register S’s birth and the allocated social worker made an appointment on 8 November 2023 and invited MM to attend. MM did not attend and S’s birth was registered by the allocated social worker. On 27 November 2023, MM informed the allocated social worker that she had lost her phone but would be able to meet the following day. The allocated social worker replied to make arrangements, but received no response. This was the last communication social workers had with MM until 13 February 2025.

Attempts to engage the mother continued. Efforts were made in December 2023 to contact MM. On 4 December 2023, a Looked After Child Review was held, at which a Permanence Decision was made by the local authority for S to be adopted. MM was notified of the meeting in advance but she did not attend. MM was informed of the outcome by email. After multiple attempts to arrange a meeting with MM subsequent to the 4 December 2023 Permanence Decision, contact was made with her university on 10 January 2024 to ascertain if MM was attending her course. MM’s university stated that, for data protection reasons, they could not share any information.

Throughout January, February and March 2024 further unsuccessful attempts were made to contact MM. On 22 March 2024, a letter was sent to MM inviting her to a further Permanence Panel meeting. On 28 March 2025 a Permanence Panel meeting was held, at which the decision for S to be adopted was ratified. MM did not attend and a letter was sent to her informing her of the outcome. MM was thereafter written to and invited to provide her views on a potential adoptive match. However, despite the email being marked delivered, MM did not respond. The Adoption Permanence Report dated 5 April 2024, notes the following:

“[MM]’s views were last gathered at the LAAC Review held in October 2023. From then she has completely disengaged. [The allocated social worker] has tried on numerous occasions to contact her and obtain current views and has even gone to the extent of putting a letter through the door with questions to update views, but she’s chosen not to respond to that. The last known views from MM are that she is absolutely certain that S should be adopted.”

On 8 July 2024, a home visit to the mother was undertaken by the allocated social worker, who was accompanied by a colleague. The occupants advised that MM no longer lived at the given address and had no forwarding information. On 16 February 2024, her university withdrew MM’s visa sponsorship due to non-attendance. MM’s visa was curtailed by the Secretary of State on 14 April 2024, and the expiry for leave to remain in the United Kingdom changed to 13 June 2024, at which point the Secretary of State cancelled her visa. The Asylum Intake Unit issued a letter advising MM of an asylum interview appointment on 19 June 2024, which she failed to attend. The Home Office has had no further contact with MM, who is now classified as an overstayer in the event that she remains in the United Kingdom.

I have set out the foregoing matters in some detail in order to illustrate what I am satisfied were the extensive attempts by the City Council to engage MM with respect to S’s future, to ascertain details of the father and the wider family and to confirm MM’s views with respect to S’s adoption.

On 20 August 2024, S was matched with the applicants at a Permanence Panel. MM was informed of the decision of the Permanence Panel and she was asked to provide details of her place of residence. No response was received. On 26 August 2024, S was placed with the applicants. The applicants were both born in India. Both applicants are British citizens and hold Overseas Citizenship of India.

Since S was placed with the applicants, Coram IAC has visited S every six weeks. The allocated social worker has similarly carried out frequent in-person visits to S and the prospective adopters. S has also met the applicants’ extended family, who have travelled to the UK to meet her. S now calls the applicants ‘mama’ and ‘papa’. As I have noted, each of the social work professionals and the Children’s Guardian consider that S’s placement with the applicants is meeting her welfare needs and that S is thriving.

The applicants made their application to adopt S on 4 November 2024. The application was issued on 7 November 2024. An Annexe A Report authored by the allocated social worker and a colleague was signed and dated by the contributors on the 8 and 13 of November 2024 respectively. The Annexe A Report supports the making of an adoption order. The application to adopt S made on 4 November 2024 and the Annexe A Report both erroneously stated S’s nationality as ‘British’. I will return to that issue below. On 18 December 2024, case management directions were given on paper, which included:

With the assistance of the City Council’s Tax Department, MM was located on 13 February 2025. She was informed of S’s placement with her proposed adopters and she again repeated her wish for S’s to be adopted. On 20 February 2025, MM signed the consent to adoption form (in circumstances where MM’s consent to S’s adoption was not witnessed and confirmed by a Notary on 20 February 2025, on 18 June 2025 a further meeting was arranged with MM at which her consent to S’s adoption was formally signed and notarised).

On 10 March 2025, S was joined as a party to the proceedings. At a hearing on 28 April 2025, HHJ Karp directed that the Secretary of State be notified of the adoption proceedings. At that hearing, HHJ Karp also concluded that no further steps need to be taken to trace, locate or serve S’s birth father and that it was not necessary for the applicants to serve the Indian High Commission with notice of the proceedings. These determinations were recorded as recitals to the order of 28 April 2025, rather than as orders excusing the relevant party from taking these steps.

On the 23 May 2025, the Secretary of State confirmed her intention to intervene and applied to adjourn the final hearing listed before HHJ Karp on 26 June 2025. The basis of that application to adjourn was stated to be the view of the Secretary of State that S’s nationality required to be established before an adoption order could be made and that it appeared that further questions remained to be put to MM regarding the identity of the father, the Secretary of State contending that the narrative provided by MM was not based on cogent evidence.

At the hearing on 26 June 2025, which MM did not attend, HHJ Karp acceded to a request of the Secretary of State for the matter to be adjourned and reallocated to a Judge of the Family Division. The order made on that date recorded a series of agreements with regard to legal matters between the parties and, it would appear, the Secretary of State (it is not clear on the face of the order whether the court also endorsed those conclusions). Namely:

Within the foregoing context, HHJ Karp directed that the prospective adopters issue their application for permission pursuant to s.42 of the 2002 Act, that the Secretary of State for the Home Department should issue a formal application for leave to intervene, including a skeleton argument in support of the application, and the City Council should be invited to attend the next hearing. The matter was thereafter re-allocated to me and listed on 3 July 2025 for further directions.

At a directions hearing before me on the 3 July 2025, and by her application for permission to intervene issued pursuant to the direction of HHJ Karp, the Secretary of State contended that this case raises issues concerning the acquisition and loss of nationality in the context of domestic adoption and issues of international comity and the application of an international treaties to which the United Kingdom is party. In her Skeleton Argument for the hearing on 3 July 2025, Ms Julyan further refined those issues as being (a) whether S is an Indian national or is stateless, (b) whether the application for adoption made by the applicants constitutes an adoption with a foreign element engaging the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at the Hague on 29 May 1993 (hereafter “the Hague Adoption Convention 1993”) and the 1963 Vienna Convention and (c) whether there is a need for reconsideration of the need to take steps to locate the S’s natural father.

Within the forgoing context, I granted permission to the Secretary of State to intervene and made the City Council a party to the proceedings pursuant to r14.3 of the Family Procedure Rules 2010. On the application of the parties, I also gave permission to instruct Ms. Lavanya R. Fischer as a single joint expert on the law in India governing immigration and citizenship and how it would likely be applied in this case. The court now has before it the report of Ms Fischer dated 16 July 2025. Her clear and comprehensive report, which no party sought to challenge, can be summarised as follows:

As I stated at the outset, within the foregoing context the court has proceeded to consider the following issues with respect to S at this hearing:

The law relevant to the determination of the issues before the court can be summarised as follows.

The conferring of British nationality on S is the exclusive preserve of the Secretary of State in accordance with the relevant domestic legislation. The court will not exercise its jurisdiction so as to interfere with the statutory machinery for conferring British citizenship put in place by Parliament (see Re Mohamed Arif (An Infant); Nirbai Singh (An Infant) [1968] Ch 643). Pursuant to s.55(1) and 55(2)(a) of the Borders, Citizenship and Immigration Act 2009, the Secretary of State must make arrangements for ensuring that any function of the Secretary of State in relation to immigration, asylum or nationality is discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.

The applicants and the Children’s Guardian contend that S is currently stateless. The United Kingdom is a Contracting Party to the 1954 Convention on the Status of Stateless Persons (hereafter “the 1954 Convention) and the 1961 Convention on the Reduction of Statelessness (hereafter “the 1961 Convention”). The 1954 Convention defines statelessness in Art 1 as “person who is not considered as a national by any State under the operation of its law.” Where a person is stateless by reference to this definition, the 1954 Convention accords to the stateless person certain rights and sets out a common framework of minimum standards of treatment. Art 32 of the 1954 Convention requires, as far as possible, Contracting States to facilitate the assimilation and naturalization of stateless persons. Art 1 of the 1961 Convention provides that a Contracting State shall grant, by operation of law at birth or thereafter upon application in the manner prescribed by national law, its nationality to a person born on its territory who would otherwise be stateless. The UN Convention on the Rights of the Child, to which the United Kingdom is also a signatory, provides as follows at Art 7:

“Article 7

1.

The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.

2.

States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.”

Schedule 2 (Provisions for reducing statelessness) paragraphs 3A and 6 of the 1981 Act (as amended by s.11 of the Nationality and Borders Act 2022) provides as follows with respect to the registration of stateless minors:

“3A(1) A person born in the United Kingdom or a British overseas territory after commencement is entitled, on an application for the person to be registered under this paragraph, to be so registered if—

(a)

the person is and always has been stateless,

(b)

on the date of the application, the person was a minor,

(c)

the person was in the United Kingdom or a British overseas territory (no matter which) at the beginning of the period of five years ending with that date and (subject to paragraph 6) the number of days on which the person was absent from both the United Kingdom and the British overseas territories in that period does not exceed 450, and

(d)

the Secretary of State is satisfied that the person is unable to acquire another nationality in accordance with sub-paragraph (2).

(2)

A person is able to acquire a nationality in accordance with this sub-paragraph if—

(a)

the nationality is the same as that of one of the person’s parents,

(b)

the person has been entitled to acquire the nationality since birth, and

(c)

in all the circumstances, it is reasonable to expect the person (or someone acting on their behalf) to take the steps which would enable the person to acquire the nationality in question.

(3)

For the purposes of sub-paragraph (2)(b), a person is not entitled to acquire a nationality if its acquisition is conditional on the exercise of a discretion on the part of the country or territory in question.

(4)

A person entitled to registration under this paragraph—

(a)

is to be registered as a British citizen if, in the period of five years mentioned in sub-paragraph (1), the number of days wholly or partly spent by the person in the United Kingdom exceeds the number of days wholly or partly spent by the person in the British overseas territory;

(b)

in any other case, is to be registered as a British overseas territories citizen.

.../

6 If in the special circumstances of any particular case the Secretary of State thinks fit, he may for the purposes of paragraph 3, 3A or 4 treat the person who is the subject of the application as fulfilling the requirement specified in sub-paragraph (1)(c) of that paragraph although the number of days on which he was absent from both the United Kingdom and the British overseas territories in the period there mentioned exceeds the number there mentioned.”

As a matter of domestic law, in order to be considered stateless, it must be demonstrated that the applicant has taken all reasonable steps to acquire nationality with the competent authorities of any relevant country. Where the applicant is a child born in the United Kingdom, their parent or legal guardian must have taken all reasonable steps to register the child’s birth with the competent authorities and have been unsuccessful (see Immigration Rules, Statelessness Annex paragraphs S 3.2 and S 3.3).

As to the consequences of a domestic adoption order being made in respect of S in favour of the applicants, all parties accept that, in accordance with the statutory regime, this would have the effect of conferring on her British citizenship. Section 1(5) of the British Nationality Act 1981 (hereafter “the 1981 Act”) provides as follows:

“1.

Acquisition by birth or adoption

.../

(5)

Where—

(a)

any court in the United Kingdom or, on or after the appointed day, any court in a qualifying territory makes an order authorising the adoption of a minor who is not a British citizen; or

(b)

a minor who is not a British citizen is adopted under a Convention adoption effected under the law of a country or territory outside the United Kingdom,

that minor shall, if the requirements of subsection (5A) are met, be a British citizen as from the date on which the order is made or the Convention adoption is effected, as the case may be.

(5A)

Those requirements are that on the date on which the order is made or the Convention adoption is effected (as the case may be)—

(a)

the adopter or, in the case of a joint adoption, one of the adopters is a British citizen; and

(b)

in a case within subsection (5)(b), the adopter or, in the case of a joint adoption, both of the adopters are habitually resident in the United Kingdom or in a designated territory.

.../”

The statutory provisions governing adoption are set out in the Adoption and Children Act 2002. Pursuant to s.46 of the Adoption and Children Act 2002 (hereafter “the 2002 Act”), the court may make an adoption order. Pursuant to ss.46 and 67 of the 2002 Act, the effect of an adoption order is as follows:

The conditions for making adoptions order are set out in s.47 of the 2002 Act, which provides as follows in so far as relevant in these proceedings:

“47 Conditions for making adoption orders

(1)

An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc. consent).

(2)

The first condition is that, in the case of each parent or guardian of the child, the court is satisfied—

(a)

that the parent or guardian consents to the making of the adoption order,

(b)

that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or

(c)

that the parent’s or guardian’s consent should be dispensed with.

(3)

A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court’s leave.

(4)

The second condition is that—

(a)

the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,

(b)

either—

(i)

the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or

(ii)

the child was placed for adoption under a placement order, and

(c)

no parent or guardian opposes the making of the adoption order.

(5)

A parent or guardian may not oppose the making of an adoption order under the second condition without the court’s leave.

.../”

The question of S’s nationality is not a relevant factor when determining whether the court has jurisdiction to make a domestic adoption order in respect of S. In Re N (Children)(Adoption: Jurisdiction) [2015] EWCA Civ 1112, [2016] 2 WLR 713 Black LJ (as she then was) held (in comments not disturbed by the Supreme Court in In Re N [2016] UKSC 15, [2017] AC 167), as follows at [178] to [181] in respect of the import of the nationality and domicile of the child who is the subject of the application for an adoption order and the birth parents:

“[178] 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.

[179] 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.

[180] 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.

[181] 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.”

The principles to be applied when considering whether to make an adoption order are set out at s1(1) of the 2002 Act:

“1 Considerations applying to the exercise of powers

(1)

Subsections (2) to (4) apply whenever a court or adoption agency is coming to a decision relating to the adoption of a child.

(2)

The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.

(3)

The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.

(4)

The court or adoption agency must have regard to the following matters (among others)—

(a)

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

(b)

the child’s particular needs,

(c)

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

(d)

the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,

(e)

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

(f)

the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i)

the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)

the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii)the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

(5)

In placing a child for adoption, an adoption agency in Wales must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.

(6)

In coming to a decision relating to the adoption of a child, a court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.

(7)

In this section, “coming to a decision relating to the adoption of a child”, in relation to a court, includes—

(a)

coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 or 51A (or the revocation or variation of such an order),

(b)

coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,

but does not include coming to a decision about granting leave in any other circumstances.

(8)

For the purposes of this section—

(a)

references to relationships are not confined to legal relationships,

(b)

references to a relative, in relation to a child, include the child’s mother and father.

(9)In this section “adoption agency in Wales” means an adoption agency that is—

(a)

a local authority in Wales, or

(b)

a registered adoption society whose principal office is in Wales.”

Chapter 6 of the 2002 Act is titled “Adoptions with a Foreign Element”, with the chapter sub-heading being “Bringing children into and out of the United Kingdom”. The term ‘adoptions with a foreign element’ is not defined in Chapter 6 nor in the glossary contained in Schedule 6 of the 2002 Act. However, it is plain from the wording of ss.82 to 87 that Chapter 6 of the 2002 Act governing adoptions with a foreign element is concerned with children brought into the jurisdiction for the purposes of adoption (s.83), conferring parental responsibility prior to adoption abroad (s.84), children taken out of the jurisdiction for the purposes of adoption (s.85), overseas adoptions (s.87) and adoptions proceeding under the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (hereafter “the 1993 Hague Convention”) (ss.88 and 89). Section 83 of the 2002 Act provides as follows:

“83 Restriction on bringing children in

(1)

This section applies where a person who is habitually resident in the British Islands (the “British resident”)—

(a)

brings, or causes another to bring, a child who is habitually resident outside the British Islands into the United Kingdom for the purpose of adoption by the British resident, or

(b)

at any time brings, or causes another to bring, into the United Kingdom a child adopted by the British resident under an external adoption effected within the period of twelve months ending with that time.

The references to adoption, or to a child adopted, by the British resident include a reference to adoption, or to a child adopted, by the British resident and another person.

(2)

But this section does not apply if the child is intended to be adopted under a Convention adoption order.

(3)

An external adoption means an adoption, other than a Convention adoption, of a child effected under the law of any country or territory outside the British Islands, whether or not the adoption is—

(a)

an adoption within the meaning of Chapter 4, or

(b)

a full adoption (within the meaning of section 88(3)).

(4)

Regulations may require a person intending to bring, or to cause another to bring, a child into the United Kingdom in circumstances where this section applies—

(a)

to apply to an adoption agency (including a Scottish or Northern Irish adoption agency) in the prescribed manner for an assessment of his suitability to adopt the child, and

(b)

to give the agency any information it may require for the purpose of the assessment.

(5)

Regulations may require prescribed conditions to be met in respect of a child brought into the United Kingdom in circumstances where this section applies.

(6)

In relation to a child brought into the United Kingdom for adoption in circumstances where this section applies, regulations may—

(a)

provide for any provision of Chapter 3 to apply with modifications or not to apply,

(b)

if notice of intention to adopt has been given, impose functions in respect of the child on the local authority to which the notice was given.

(7)

If a person brings, or causes another to bring, a child into the United Kingdom at any time in circumstances where this section applies, he is guilty of an offence if—

(a)

he has not complied with any requirement imposed by virtue of subsection (4), or

(b)

any condition required to be met by virtue of subsection (5) is not met,

before that time, or before any later time which may be prescribed.

(8)

A person guilty of an offence under this section is liable—

(a)

on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both,

(b)

on conviction on indictment, to imprisonment for a term not exceeding twelve months, or a fine, or both.

(9)

In this section, “prescribed” means prescribed by regulations and “regulations” means regulations made by the Secretary of State, after consultation with the Assembly.”

The relevant regulations are the Adoption with a Foreign Element Regulations 2005 (hereafter “the 2005 Regulations”). The 2005 Regulations likewise do not define the term ‘adoptions with a foreign element’. Again, however, having regard to their contents, the Regulations deal with bringing children into and taking children out of the United Kingdom for the purposes of adoption (Part 2) and with adoptions under the 1993 Hague Convention (Part 3).

The United Kingdom is a party to the 1993 Hague Convention. India is also a signatory to the 1993 Hague Convention. Art 2 the 1993 Hague Convention provides as follows regarding the situations in which the 1993 Hague Convention applies:

“Article 2

(1)

The Convention shall apply where a child habitually resident in one Contracting State ("the State of origin") has been, is being, or is to be moved to another Contracting State ("the receiving State") either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin.

(2)

The Convention covers only adoptions which create a permanent parent-child relationship.”

The Vienna Convention on Consular Relations 1963, which was ratified by the United Kingdom in 1972 and by India in 1977, provides as follows at Arts 36 and 37:

“Article 36

Communication and contact with nationals of the sending State

1.

With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a)

consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to with and access to consular officers of the sending State;

(b)

if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;

(c)

consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.

Article 37

Information in cases of deaths, guardianship or trusteeship, wrecks and air accidents

If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty:

(a)

in the case of the death of a national of the sending State, to inform without delay the consular post in whose district the death occurred;

(b)

to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments;

(c)

if a vessel, having the nationality of the sending State, is wrecked or runs aground in the territorial sea or internal waters of the receiving State, or if an aircraft registered in the sending State suffers an accident on the territory of the receiving State, to inform without delay the consular post nearest to the scene of the occurrence.”

Section 1(1) of the Consular Relations Act 1968 (hereafter “the 1968 Act”) gives effect to the 1963 Vienna Convention in domestic law. In circumstances where s.1(1) of the 1968 Act gives effect to the 1963 Vienna Convention subject to ss.2 and 3(2) and only in respect of the provisions of the Convention set out in Schedule 1 to the Act, the 1963 Vienna Convention is not fully incorporated into domestic law. Schedule 1 of the 1968 Act sets out the provisions of the 1963 Vienna Convention having force of law in the United Kingdom. Arts 36 and 37 are not included in Schedule 1.

In Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] 1 WLR 2670, Sir James Munby, P examined the effect of Arts 36 and 37 of the 1963 Vienna Convention in “any care or other public law case”. Within this context, Sir James articulated what he described as “good practice” for family judges in such proceedings by reference to the 1963 Vienna Convention.

In articulating good practice, in Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) Sir James characterised the relevant provisions of the 1963 Vienna Convention as follows:

“[41] This is not the occasion for any elaborate discussion of the effect of these provisions as a matter of either public international law or English domestic law (as to which see the Consular Relations Act 1968 and the Diplomatic and Consular Premises Act 1987). I am concerned only with what they suggest as good practice in care cases. But in that context there are, as it seems to me, three points to be borne in mind: (1) First, article 36 enshrines the principle that consular officers of foreign states shall be free to communicate with and have access to their nationals, just as nationals of foreign states shall be free to communicate with and have access to their consular officers. (2) Second, the various obligations and rights referred to in paragraphs (b) and (c) of article 36(1) apply whenever a foreign national is “detained”; and where a foreign national is detained the “competent authorities” in this country have the obligations referred to in paragraph (b). (3) Third, article 37(b) applies whenever a “guardian” is to be appointed for a minor or other foreign national who lacks full capacity. And article 37(b) imposes a particular “duty” on the “competent authorities” in such a case.”

Within this context, careful regard must be had to what Sir James Munby articulated in Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) as being good practice:

“[45] In considering the possible implications of articles 36 and 37 of the Convention, family judges should assume that, in appropriate circumstances, the court may itself be a “competent authority”. They should also assume that there is a “detention” within the meaning of article 36 whenever someone, whether the child or a parent, is being deprived of their liberty within the meaning of article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, for example, in accordance with sections 2 or 3 of the Mental Health Act 1983 or, in the case of a child, in accordance with section 25 of the Children Act 1989.

[46] In cases involving foreign nationals there must be transparency and openness as between the English family courts and the consular and other authorities of the relevant foreign state. This is vitally important, both as a matter of principle and, not least, in order to maintain the confidence of foreign nationals and foreign states in our family justice system. To seek to shelter in this context behind our normal practice of sitting in private and treating section 12 of the Administration of Justice Act 1960 as limiting the permissible flow of information to outsiders, is not merely unprincipled; it is likely to be counter-productive and, potentially, extremely damaging. If anyone thinks this an unduly radical approach, they might pause to think how we would react if roles were reversed and the boot was on the other foot.

[47] Given this, it is highly desirable, and from now on good practice will require, that in any care or other public law case: (1) The court should not in general impose or permit any obstacle to free communication and access between a party who is a foreign national and the consular authorities of the relevant foreign state. In particular, no injunctive or other order should be made which might interfere with such communication and access, nor should section 12 of the Administration of Justice Act 1960 be permitted to have this effect. (2) Whenever the court is sitting in private it should normally accede to any request, whether from the foreign national or from the consular authorities of the relevant foreign state, for (a) permission for an accredited consular official to be present at the hearing as an observer in a non-participatory capacity; and/or (b) permission for an accredited consular official to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents. (3) Whenever a party, whether an adult or the child, who is a foreign national (a) is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or (b) is detained, the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so itself without delay.”

Accordingly, in respect of parties to proceedings who are foreign nationals, the family court should not, in any care or other public law case, act to impede communication between a foreign national and their consulate, should permit the attendance of an accredited consular official at the hearing as an observer in a non-participatory capacity and/or give permission for a transcript of the hearing, a copy of the order and copies of other relevant documents and, where a party who is a foreign national is represented by a guardian, guardian ad litem or litigation friend, or is detained, should ascertain whether that fact has been brought to the attention of consular officials and, if it has not, should normally give such notification itself without delay.

In Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) Sir James Munby characterised the approach he articulated as “good practice”. Whilst referring to the 1968 Act in general terms, he did not expressly refer to the fact that Arts 36 and 37 are excluded from Schedule 1, and therefore not incorporated into domestic law. There was, as he made clear, no detailed consideration of effect of these provisions as a matter of either public international law or English domestic law. For example, he did not have cause to determine whether a court is a “competent authority” for the purposes of the 1963 Convention (see Secretary of State for the Home Department v Skripal [2018] EWCOP 6, [2018] COPLR 2020 at [12]) or the precise effect of Arts 36 and 37 not being scheduled in the 1968 Act.

In Re O (A Child: Vienna Convention on Consular Relations 1963) [2021] EWHC 908 (Fam) Keehan J did examine the question of what force Art 37 of the 1963 Convention has in circumstances where the Article is not incorporated into English law (albeit he did so on the basis that the 1963 Convention as a whole has “not been incorporated into our domestic law by an Act of Parliament”). Having considered extracts from Bennion on Statutory Interpretation,7^th Edition at [12.61], in which the authors cite Lord Diplock’s view in Salomon v Customs and Excise Comrs [1967] 2 QB 116 that “there is a prima facie presumption that Parliament does not intend to act in breach of international law, including therein specific treaty obligations; and if one of the meanings that can reasonably be attributed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is so consonant is to be preferred” and the terms of Art 37(b), Keehan J concluded that:

“[31] In the premises does Article 37(b) impose an absolute and binding duty in all circumstances to notify a foreign authority where a court appoints a guardian in respect of one of its nationals? In my judgment it does not.

[32] In the vast majority of cases where Article 37(b) is engaged, the court will have no difficulty or face any impediment in complying with the terms of the Vienna Convention and giving the requisite notification to the foreign authority. There will rarely be cases, such as the circumstances of this case, where it would be wholly inimical to the welfare best interests of the child to give the requisite notice to the foreign authority.

[33] The Vienna Convention is not enshrined in our domestic law. The terms of the Convention should ordinarily be complied with but where to do so would be contrary to the welfare best interests of the child concerned, I am satisfied that the court may conclude it would not be appropriate to give the requisite notification.”

Finally with respect to the applicable legal principles governing the determination of the issues in this case, in A, B, C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 41, [2020] Fam 325 the Court of Appeal examined the matters that will be relevant where the decision to be made by a local authority in its discretion is whether to notify the father, or wider family members, of the birth of a child whose mother has concealed her pregnancy from them. In each of the three cases heard together by the Court of Appeal, the mother had concealed her pregnancy as she did not want the father or other relatives to know of the birth. In all three cases the mother either wished the child to be adopted or accepted that the local authority's plan for the child might involve adoption.

The principles identified by the Court of Appeal in A, B, C (Adoption: Notification of Fathers and Relatives) that are relevant when deciding whether to whether to notify the father or wider family members, which the Court of Appeal made clear at [85] will apply whether the relevant decision is taken by social workers or by courts and whether the decision concerns a putative father or a close relatives, are as follows:

In A, B, C (Adoption: Notification of Fathers and Relatives) Peter Jackson LJ made clear that any request for an adoption that excludes a father or close family members will be carefully scrutinised by social workers and the court in circumstances where:

“[2] Respect is due to the position of any mother who goes through pregnancy without family support and then chooses to relinquish the child at birth in the belief that it is for the best. Respect is also due to the position of the unsuspecting relatives. Some may have been a fleeting presence in the mother's life, but others may be more significant figures who have been kept in the dark and would be astonished to find that a baby (their child, sibling or grandchild) had been born and adopted without their knowledge, particularly if they were in a position to put themselves forward as carers. Most of all, the notification decision has life-changing implications for the baby. It may influence whether adoption happens at all and, even if it does, a sound adoption has its foundations in the integrity of the process by which it is achieved.”

Having considered carefully the submissions made in writing and orally, I am satisfied that S does not currently have a nationality. The nationalities available to her are Indian citizenship and, were an adoption order to be made, British citizenship. I am further satisfied that the adoption application made by the applicants in respect of S does not constitute an adoption with a foreign element for the purposes of either the 2002 Act or the 2005 Regulations. Finally, I am satisfied that the duty to inform under Art 37(b) of the 1963 Vienna Convention (to the extent that such a duty exists) does not require the Indian High Commission to be informed of these proceedings in circumstances where S is not an Indian citizen. In this context, I am further satisfied that it is in S’s best interests for permission to be given to the prospective adopters to apply for an adoption order and for an adoption order to be made. My reasons for so deciding are as follows.

Before turning to my reasons for reaching each of the conclusions set out in the foregoing paragraph, two matters require to be dealt with.

First, a number of the questions that this court is asked to determine have been addressed at previous hearings prior to this matter being reallocated to this court. This court is not sitting in an appellate capacity. In the circumstances, it must be careful not to determine issues that have already been determined and not appealed. However, in this case none of the issues the parties invite the court to determine have been the subject of an order.

Whilst at the hearing on 28 April 2025 HHJ Karp is recorded as determining that no further steps need to be taken to trace, locate or serve S’s birth father and that it was not necessary for the applicants to serve the Indian High Commission with notice of the proceedings, no order was made to that effect, the determinations simply being recorded as recitals to the order of 28 April 2025. It is the case that the order of 26 June 2025 recorded a series of agreements with regard to legal matters between the parties to the effect that S is not a British citizen, the application for an adoption order in respect of S is a “Non-Agency” adoption pursuant to section 47(2) ACA 2002 and notice of the prospective adopter’s intention to apply for an adoption order in accordance with section 44 ACA 2002 was properly given to the local authority where the applicants reside when the notice of these proceedings were served on that local authority. However, again, no orders or declarations were made giving effect to those agreements and it is not clear on the face of the order whether the court endorsed those conclusions.

In such circumstances, whilst the questions of S’s current nationality, whether the adoption application made by the applicants in respect of S properly treated as a domestic adoption or an adoption with a foreign element and whether there is a duty to notify under Article 37(b) of the Vienna Convention the Indian High Commission have been addressed, to a certain extent, at prior hearings, I am satisfied that this court is not precluded from dealing with those issues definitively at this hearing.

Second, as noted above, in her Skeleton Argument on behalf of the Secretary of State, Ms Julyan seeks from the court “guidelines”, for local authorities, adoption agencies, children’s guardians and the family courts, as to the process to be followed when a child is born to a foreign national in the United Kingdom and is to be adopted in this jurisdiction, including “the checks and safeguards to be introduced and the policy considerations to be implemented, when a foreign child (albeit born in the United Kingdom) is placed for adoption in England”. I am not persuaded that that is a proper function of the court in this case.

The court’s function is to decide the case before it having applied the relevant legal principles to the specific facts of that case. In so far as the facts of this case raise issues of policy or procedure that require guidance, those are ordinarily matters better addressed by the Government Minister holding the relevant portfolio or by the Family Procedure Rules Committee respectively, than by a court deciding a single, fact specific, case. This is particularly so in circumstances where a significant number of children in this jurisdiction are born to foreign nationals and, accordingly, any guidance given by the court with respect to policy and procedure would apply to a very large cohort of children. Further, Parliament has already set out a regime to govern adoptions that are, by reference to the statutory parameters of that regime, adoptions with a foreign element. The Department for Education has published guidance with respect to the operation of that regime (see Statutory Guidance on Adoption – For local authorities, voluntary agencies and adoption support agencies 2013 and Annex C to that guidance entitled Adoptions with a Foreign Element). As I deal with below, Parliament did not include in that regime children born in England to a foreign national in respect of whom an application has been made to adopt them in this jurisdiction and such children fall to be dealt with in the domestic adoption regime. The courts have confirmed that nationality is not a relevant factor when determining whether the court has jurisdiction to make a domestic adoption order in respect of a child (Re N (Children)(Adoption: Jurisdiction) at [178] to [181]).

In the circumstances, and subject to reiterating the need in proceedings involving a foreign national child or a child with an apparent connection to a foreign jurisdiction to consider at the outset of proceedings the issues arising from the nationality and/or immigration status of a child, which may include the need to notify the Secretary of State and invite her to intervene in the proceedings (see BD v Barnet LBC [2024] EWFC 159, [2025] 1 FCR 98 at [34] and [35]), I do not consider it appropriate to take up the Secretary of State’s invitation to provide guidance to local authorities, adoption agencies, children’s guardians and the family courts with respect to policy and procedure where a child is born of a foreign national in the United Kingdom and is to be adopted in this jurisdiction.

Those preliminary points having been made, I turn next to address the questions that the court directed be determined at this hearing, dealing with those questions in a different order to that set out above. Having regard to the submissions made by the Secretary of State, the issues ultimately resolve into the question of whether the court should adjourn the application for an adoption order to allow the Indian High Commission to be notified of the case and for an application to be made by the Children’s Guardian for Indian citizenship by descent for S.

Whilst the Secretary of State originally contended in her Skeleton Argument in support of her joinder application that there was a question as to whether these proceedings concern an adoption with a foreign element, the Secretary of State now concedes through Ms Julyan that, in circumstances where the prospective adopters meet the requirements of s.49 of the 2002 Act, the application concerns a domestic adoption. This concession is properly made.

Whilst there is no definition of the term ‘adoption with a foreign element’ in the 2002 Act or the 2005 Regulations, the adoptions that fall within that term are apparent from reading the Act and the Regulations as a whole. Namely, adoptions involving children who have been brought into the United Kingdom for the purposes of adoption by a British resident, children who have been brought into the United Kingdom after being adopted by a British resident under an external adoption effected within 12 months of the child being brought into the UK and children taken out of the United Kingdom for the purposes of adoption.

As I have noted above, given S’s date of birth, no party seeks to suggest that MM entered the United Kingdom knowingly concealing her pregnancy for the purpose of relinquishing S in this jurisdiction. Accordingly, the court has proceeded on the basis of MM’s account, given to the allocated social worker, that she only found out about the pregnancy four months into term and whilst already residing in the United Kingdom. In any event, neither s. 83 of the 2002 Act or Part 2 of the 2005 Regulations encompass children born in the United Kingdom to a foreign national as adoptions with a foreign element. If the position were different, any child born in the jurisdiction to a parent who held a foreign nationality fall into that category.

In the circumstances, it is plain that this case does not involve an adoption with a foreign element, but rather falls to be determined as a domestic adoption application by reference to the principles applicable to such applications.

Whilst the Secretary of State now concedes that the application before the court concerns a domestic adoption, she submits through Ms Julyan that in circumstances where S’s mother and father are Indian nationals, notice of these proceedings should be given to the Indian High Commission before the court determines the application for an adoption order. In her previous Position Statement, and in her Skeleton Argument in support of her joinder application, the Secretary of State also asserted that the court should recommence the efforts to trace the father of S and her extended family, although that has not been pressed as a primary submission by Ms Julyan at this hearing.

In circumstances where it must be doubted that S is any sense “detained” for the purposes of Art 36 of the 1963 Convention, the court is concerned with the question of whether this court should inform the competent consular post, in this case the Indian High Commission, in circumstances where S has been appointed a Children’s Guardian for the purposes of Art 37(b) of the 1963 Vienna Convention. For the reason set out above, that question falls to be answered on the facts of this case, rather than in the context of a wider discussion of the policy and procedure within which the question arises. Within that context, and assuming for present purposes that the court is one of the “the competent authorities of the receiving State” and the term “guardian” in Art 37(b) encompasses a Children’s Guardian, I am satisfied that it is not appropriate to give the Indian High Commission notice of these proceedings.

Art 37(b) does not impose an absolute and binding duty in all circumstances to notify a foreign authority where a court appoints a guardian in respect of one of its nationals (see Re O (A Child: Vienna Convention on Consular Relations 1963)). The court may conclude that it would not be appropriate to give the requisite notification where to do so would be contrary to the welfare best interests of the child concerned. Notifying the Indian High Commission at this late stage in proceedings would introduce further and unspecified delay in settling S’s future which would be entirely antithetic to her best interests having regard to the requirement in s.1(3) of the 2002 Act to bear in mind that, in general, any delay in coming to the decision is likely to prejudice the S’s welfare. In my judgment, that significant disadvantage is amplified in circumstances where, for the reasons set out above, S is not an Indian national and therefore is not a “national of the sending State” for the purposes of Art 37(b), where MM has chosen to take no part in these proceedings, and therefore the question of the court obstructing free communication and access between a party and consular authorities does not arise, and where Art 37 is not incorporated into domestic law by the 1968 Act and the court has a discretion as to whether to notify the Indian High Commission.

In the foregoing circumstances, I am satisfied that it would be contrary to the welfare best interests of S to notify the Indian High Commission of these proceedings at this late stage.

The Secretary of State submits that S is entitled to Indian nationality and, as it is possible for the Children’s Guardian to process the application for Indian citizenship, S cannot be considered stateless under domestic law in circumstances where it cannot be said that all reasonable steps must have been taken to acquire Indian nationality for S by her parent or legal guardian taking all reasonable steps to register the her birth with the competent authorities and having been unsuccessful as required by the Immigration Rules. Within this context, the Secretary of State submits that, before the application for an adoption order can be determined, S’s guardian should apply for Indian citizenship on her behalf, having regard to the importance of her identity within the context of the welfare evaluation mandated by s.1 of the 2002 Act.

The question of S’s nationality is a mixed question of fact and law. No party seeks to suggest that S is a British national. Within this context, the question of S’s nationality in this case amounts to whether she is an Indian national or stateless and falls to be determined by reference to the expert report of Ms Fischer, the court taking into account her expert report as admissible evidence of fact of the content and general application of Indian law (see The Sussex Peerage Case (1844) 11 C & F 85 at 114).

The court in this case has the benefit of an expert report. No party seeks to challenge that expert report. I accept the expert evidence of Ms Fischer. In consequence, I am satisfied that whilst S is entitled, by virtue of having been born outside India to parents who are Indian citizens, to acquire Indian citizenship by descent, she has not done so in circumstances where Indian citizenship by descent is not automatic at birth and the steps required under s. 4(1) of Citizenship Act, 1955 read with Rule 3 of the Citizenship Rules, 2009 have not been taken in respect of S. Accordingly, I am satisfied that S is not an Indian national.

In circumstances where S is neither an Indian or British national, the question arises whether she is currently stateless by reference to the definition of statelessness in Art 1 of the 1954 Convention, namely she is a “person who is not considered as a national by any State under the operation of its law.” In those circumstances, its obligations under Art 32 of the 1954 Convention would require the United Kingdom, as far as possible, to facilitate the assimilation and naturalization of S. In that context, Art 1 of the 1961 Convention would require the United Kingdom to grant, by operation of law at birth or thereafter upon application in the manner prescribed by national law, its nationality to S as a person born on its territory who would otherwise be stateless. The obligations are reinforced by Art 7 of the UNCRC which accords S the right to acquire a nationality.

I am satisfied that it is not necessary for the purposes of determining the current application to decide the question of whether S is stateless. I am likewise satisfied that it is not necessary for the court to adjourn the proceedings for an application to be made for Indian citizenship for S before the court is in a position to determine the application made by the prospective adopters in this case.

S’s nationality, or lack thereof, does not operate to determine the question of jurisdiction in this case. As demonstrated above, in circumstances where Parliament did not include in regime governing adoptions with a foreign element children born in England to a foreign national in respect of whom an application has been made to adopt them, the current application falls to be dealt with as a domestic adoption. As also set out above, the appellate courts have confirmed that nationality is not a relevant factor when determining whether the court has jurisdiction to make a domestic adoption order in respect of a child under the 2002 Act (Re N (Children)(Adoption: Jurisdiction) at [178] to [181]). In the circumstances, it is not necessary to settle the question of S’s nationality or, by extension, the question of statelessness, before the court has jurisdiction to determine the application before it.

I am further satisfied that adjourning the proceedings for an application to be made for Indian citizenship for S would introduce extensive and unacceptable delay into settling S’s future in circumstances where, ordinarily, the participation of one or other of S’s natural parents is required to visit the Indian consulate in person to submit the required application and present original documents for verification and, absent the parents being willing or able to undertake these steps, a legal guardian would have to be appointed and thereafter approach the High Commission of India. Again, this would be inconsistent with the need for the court to have regard to the requirement in s.1(3) of the 2002 Act to bear in mind that, in general, any delay in coming to the decision is likely to prejudice the S’s welfare. The expert assessment is that it would be challenging to complete the process under Section 4(1) of the Act in this manner. The delay consequent upon challenge would be antithetic to S’s best interests, particularly where, for the reasons I have given, nationality is not relevant to the court’s jurisdiction to determine the application.

Finally, I am satisfied having regard to the expert evidence that dealing with the adoption application at this stage will not preclude the question of S’s Indian nationality being settled following her adoption and, accordingly, will not be to the detriment of that aspect of her welfare.

The expert evidence demonstrates that S’s adoption by OCI card holders does not present any disadvantages to her obtaining Indian citizenship at a later date on the application of her adoptive parents. As set out above, if S acquired Indian Citizenship by descent under Section 4(1) of the Act and British citizenship through adoption, she would have dual nationality until attaining the age of majority. Thereafter, pursuant to s.4(1-A) of the Act S would cease to be an Indian citizen unless she renounced her British citizenship within six months of attaining majority. If S attained majority without obtaining Indian citizenship, she could still obtain citizenship by registration under Section 5 of the Act, provided she fulfilled the conditions under that statutory provision. Finally, as I have noted, all parties accept that in consequences of the making an adoption order in favour of the prospective adopters would be that S would become a British citizen. (Footnote: ¹)

The expert evidence further confirms that even were S not to secure Indian citizenship, in circumstances where the prospective adopters are both Overseas Citizens of India, upon adoption S will become eligible for OCI status through her adoptive parents. An English adoption order will meet the requirements for the purposes of OCI registration. The expert confirms that whilst S would not enjoy political rights such as voting, she would be entitled to parity with Non-Resident Indians in respect of economic, financial, and educational facilities, except in matters relating to the acquisition of agricultural land, farmhouses, or plantation properties.

For the reasons given, I am not satisfied that it is necessary in this case to adjourn the application for an adoption order in order for the Indian High Commission to be notified of the case and for an application to be made by the Children’s Guardian for Indian citizenship by descent for S. I am satisfied, rather, that the court can proceed to determine that application. I am further satisfied that it is in S’s best interests to give the applicants permission to make the application and to make an adoption order in favour of the applicants.

S is eligible to be adopted by the applicants by virtue of her age and circumstances pursuant to ss.47 and 49 of the 2002 Act. The applicants are eligible to adopt S by virtue of their being aged over the age of 18, as mandated by s.50 of the 2002 Act and domiciled in England and Wales as required by s.49 of the 2002 Act. Pursuant to s.42(4) of the 2002 Act, S has had her home with the applicants since August 2024 and the application can proceed with the courts leave, which can be granted at the same time as the adoption order. Pursuant to s.44(2) of the 2002 Act, the local authority where the applicant’s reside have been given notice of the applicants’ intention to adopt S by way of the service of the proceedings on them. Finally, in circumstances where s.47(2) of the 2002 Act requires that each parent or guardian of the child consents unconditionally and with full understanding of the legal consequences of the adoption order to the making of the adoption order MM, as the only parent with parental responsibility, has provided her notarised consent.

The court having jurisdiction to make a domestic adoption order in respect of S by reason of the matters set out in the foregoing paragraph, in determining whether to make an adoption order, the mother having provided her informed consent to that course of action, the paramount consideration of the court must be the S’s welfare, throughout her life, pursuant to s.1(1) of the 2002 Act. S’s ascertainable wishes and feelings regarding the decision to grant an adoption order in respect of her must be considered in light of her age and understanding. S is too young to articulate her wishes and feelings, but the evidence before the court shows that she is now extremely well attached to prospective adopters who are meeting all of her welfare needs, S calling them ‘mama’ and ‘papa’. Within this context, having been relinquished by her natural mother with no details regarding her father or wider family and having regard to the happiness, confidence and security she manifests, I am satisfied that S would wish to remain in the care of the prospective adopters both now and in the long term.

With respect to S’s particular needs, having been relinquished at birth by her natural mother, who repeatedly declined to give any information with respect to the identity of S’s father, who was not placed on the birth certificate, or of extended maternal and paternal family, S needs to grow up in a safe, secure and stable environment comprising a permanent legal family for the duration of her minority and beyond in the care of adults who can meet her physical, emotional and educational and welfare needs.

With respect to the likely effect on S, throughout her life, of having ceased to be a member of the original family and become an adopted person, it must be acknowledged that there are disadvantages to her growing up outside of her family of origin and their heritage and having no knowledge of her family beyond what is known about her natural mother. However, those adverse aspects will, I am satisfied, be mitigated by the secure family life that will be available to her for the remainder of her life through adoption and applicants’ intention to support S to know about her heritage and identity, in so far as this is possible given the limited information available, as she grows up. In that context I also have regard, with respect to S’s age, sex, background and other characteristics, that it has in this case been possible to identify prospective adopters who share very closely S’s national, racial, cultural and linguistic heritage. Both of the prospective adopters were born in India, and the prospective adoptive mother’s first language is the same as that of S’s birth mother. S will be taken to India to visit the prospective adopters’ own families once she is adopted, which will further assist S to understand her heritage.

By reason of her being relinquished at birth, S does not have any relationships with relatives. MM has declined to share any information to help locate or make contact with her family. It is not known whether her family are aware of S’s birth and the decision to place her for adoption. In this context, the Secretary of State has submitted that further steps should be taken in order for the court to be in a position to ascertain the ability and willingness of any of S’s relatives, or of any such person, to provide the S with a secure environment in which she can develop, and otherwise to meet the her needs and the wishes and feelings of any of the S’s relatives. I am satisfied that no further steps are necessary towards identifying the father and other members of S’s birth family.

As Peter Jackson LJ observed in A, B, C (Adoption: Notification of Fathers and Relatives) at [3]:

“For social workers and courts these are not easy decisions. They have to be made without delay, on incomplete information, and in the knowledge of the profound consequences for everyone concerned. The law aims to distinguish those cases where a “fast-track” adoption without notification of relatives is lawful from the majority of cases where the profound significance of the decision for the child demands that any realistic alternatives to adoption are given proper consideration. But in the end each case is unique and the outcome must depend on the facts.”

As I have noted, on 28 April 2025, HHJ Karp concluded that no further steps need to be taken to trace, locate or serve S’s birth father and that conclusion being recorded as recitals to the order of 28 April 2025, rather than as orders excusing such steps. In any event, I am satisfied that applying the principles set out in A, B, C (Adoption: Notification of Fathers and Relatives) the position recorded in the order of 28 April 2025 is the correct one.

As I have set out above, the social workers worked hard to establish the facts and background in this case as clearly as possible, meeting with the mother on a number of occasions and attempting to obtain information from her. Such efforts can only be taken so far, and it is obviously not open to the social workers to coerce the mother into providing information regarding the father or the wider family. The mother made her position very clear and, whilst not determinative, the mother’s confidentiality must be placed in the balance and accorded respect. Also placed in the balance must be the fact that, in this case, the father does not have parental responsibility for S. Further, neither the father nor any other relative of S had established a right to family life with S under Art 8, albeit there is potential for this to be established.

Given the position arrived at over a year after S’s birth, the attachment of S to prospective adopters and the complications inherent securing information and assessment of the father and wider family, in my judgment extended family placement is not a realistic alternative at this stage without delaying the determination of S’s future for a very significant period of time. The court is required to consider the impact of that delay on S’s permanent placement. In circumstances where, when she was last spoken to, the mother understood the adoption would proceed on the basis of the father not being given notice, the mother would need to be found and consulted before the court would be in a position to evaluate the physical, psychological or social impact on the mother or on others of notification of the birth being given to them. This would again lead to further and unspecified delay. In circumstances where culturally appropriate prospective adopters have been identified for S, less weight attaches to maintaining the birth tie through a family placement for cultural or religious reasons.

In the foregoing circumstances, I am not able to accept the contention of the Secretary of State that further steps should be taken in order for the court to be in a position to ascertain the ability and willingness of any of S’s relatives, or of any such person, to provide S with a secure environment in which she can develop, and otherwise to meet the her needs and the wishes and feelings of any of S’s relatives.

Within the context of the foregoing matters, I am not able to accept the submission of the Secretary of State that it is necessary in this case to adjourn the application for an adoption order in order for the Indian High Commission to be notified of the case, for an application to be made by the Children’s Guardian for Indian citizenship by descent for S and for further enquiries to be made as to the identity of the natural father and extended birth family. Rather, holding S’s welfare throughout her life as my paramount consideration, and having regard to the whole range of the court’s powers, I am satisfied that it is in S’s best interests for permission to be given to the prospective adopters to apply for an adoption order and for an adoption order to be made. I will invite counsel to draft an order accordingly.