Thomson & Ors, R (on the application of) v The Minister of State for Children

Six couples – the third to fourteenth claimants – apply for judicial review of the Secretary of State’s decision on 22 June 2004 to impose a temporary suspension on intercountry adoptions from Cambodia and her subsequent decisions in each of their cases not to allow them to proceed under the ‘exceptional circumstances’ exception. The fifteenth claimant is the adopted daughter of one of those six couples – the fifth and thirteenth claimants – and was adopted by them from Cambodia before the imposition of the suspension. One other couple – the first and second claimants – no longer pursue their application.

This judgment is far longer than I would have wished, but its length reflects the very lengthy, detailed and complex submissions, both written and oral, that were addressed to me, particularly on behalf of the claimants. It is, I think, right that the claimants’ submissions, in particular, should be set out fairly fully, so that the nature and the full extent of their attack on the Secretary of State’s decision – in a case which is not merely of great importance to the claimants but which also has a wider public significance – can be properly understood, as also the reasons why that attack fails, as in my judgment it does, on every ground.

Before turning to the detail of the claimants’ case I must first set out the relevant legislative and factual background.

Until 2003 there were only two ways in which a child from abroad could come to the United Kingdom and be recognised as ‘adopted’ for the purposes of domestic law:

In the first place there was a growing awareness that intercountry adoptions are not necessarily in the best interests of children. This viewpoint was well expressed by the Parliamentary Assembly of the Council of Europe when on 26 January 2000 in Recommendation 1443(2000) – ‘International Adoption: respecting children’s rights’, it affirmed that:

“The purpose of international adoption must be to provide children with a mother and father in a way that respects their rights, not to enable foreign parents to satisfy their wish for a child at any price.”

The Assembly went on to express its fierce opposition to:

“the current transformation of international adoption into nothing short of a market regulated by the capitalist laws of supply and demand, and characterised by a one-way flow of children from poor states or states in transition to developed countries”.

It drew attention to the fact that:

“In many cases, receiving countries perpetuate misleading notions about children’s circumstances in their countries of origin and a stubbornly prejudiced belief in the advantages for a foreign child of being adopted and living in a rich country.”

This viewpoint is also reflected in a number of international conventions and other instruments: the European Convention on the Adoption of Children signed in Strasbourg on 24 April 1967; the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placements and Adoption Nationally and Internationally adopted by the UN General Assembly in Resolution 41/85 on 3 December 1986; the United Nations Convention on the Rights of the Child of 20 November 1989; and the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption dated 29 May 1993: see generally Pini and others v Romania (2004) 40 EHRR 312 and Pawandeep Singh v Entry Clearance Officer New Delhi [2004] EWCA Civ 1075, [2005] 2 WLR 325.

Secondly, immigration law apart, there was little effective regulation of those bringing foreign adopted children into this country. The provisions in the Adoption Act 1976 were of limited practical utility, and criminal prosecutions under sections 11 and 57 were rare.

Subject to certain exceptions which are not material for present purposes, section 11 of the Adoption Act 1976 makes it a criminal offence for a person other than an adoption agency to “make arrangements for the adoption of a child, or place a child for adoption”. Section 72(3) provides that:

“a person shall be deemed to make arrangements for the adoption of a child if he enters into or makes any agreement or arrangement for, or for facilitating, the adoption of the child by any other person, whether the adoption is effected, or is intended to be effected, in Great Britain or elsewhere, or if he initiates or takes part in any negotiations of which the purpose or effect is the conclusion of any agreement or the making of any arrangement therefor, and if he causes another person to do so.”

A particular problem was that, despite the fact that those producing such reports were, as a number of judicial decisions had made plain, committing criminal offences under sections 11 and 57, there was an effectively unregulated private market in so-called ‘home study reports’, produced by so-called ‘independent social workers’. Many of these reports were of quite lamentable quality: see the case-law anthologised in Re M (Adoption: International Adoption Trade) [2003] EWHC 219 (Fam), [2003] 1 FLR 1111. These abuses continued despite the fact that section 72(3A) of the Adoption Act 1976, inserted by the Adoption (Intercountry Aspects) Act 1999 with effect from 31 January 2000, had made clear that:

“in relation to the proposed adoption of a child resident outside the British Islands, references to arrangements for the adoption of a child include references to arrangements for an assessment for the purpose of indicating whether a person is suitable to adopt a child or not.”

In 2003 two important steps were taken to improve matters, in each case with effect from 1 June 2003. First, in accordance with the provisions of the Adoption (Intercountry Aspects) Act 1999 and supplemented by the Intercountry Adoption (Hague Convention) Regulations 2003, SI 2003/118, the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption came into force as a matter of domestic law. This provides a third method by which a child from abroad can come to the United Kingdom and be recognised as ‘adopted’ for the purposes of domestic law. Secondly, the perceived deficiencies in those provisions of the Adoption Act 1976 which regulate intercountry adoptions were remedied by the amendments to the 1976 Act made by the Adoption and Children Act 2002 and by the regulations made in accordance with section 56A of the 1976 Act as thus amended. More generally, the 2002 Act reaffirmed and strengthened the former safeguards, which permitted only adoption agencies to make arrangements for adoption, and imposed for the first time express restrictions on the preparation and submission of reports. I need not go into the details, but section 94 of the Adoption and Children Act 2002 imposes restrictions on the preparation of reports in connection with adoption with the aim of ensuring that only professionally qualified staff carry out assessments and the preparation of reports. Contravention of section 94 is a criminal offence.

It is with this latter group of provisions that I am here concerned, for the present case involves Cambodian children proposed to be brought into this country following their adoptions by British residents in accordance with Cambodian law, and Cambodia is neither on the designated list nor a signatory to the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption.

So far as material for present purposes section 56A of the Adoption Act 1976 (as amended by the Adoption and Children Act 2002) provides as follows:

“(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 six months ending with that time.

…

(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 … 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.

…

(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.

…

(11)

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

The relevant regulations are the Adoption (Bringing Children into the United Kingdom) Regulations 2003, SI 2003/1173. So far as material for present purposes these Regulations (“the 2003 Regulations”) provide as follows:

“3

A person intending to bring, or to cause another to bring, a child into the United Kingdom in circumstances where section 56A of the 1976 Act applies must –

(a)

apply in writing to an adoption agency for an assessment of his suitability to adopt; and

(b)

give the adoption agency any information it may require for the purposes of the assessment.

4

In a case where the adoption agency has determined and approved a person who has applied for an assessment under regulation 3 as eligible and suitable to adopt in accordance with the Adoption Agencies Regulations 1983, that agency must notify the Secretary of State in writing of that decision and provide to him –

(a)

all the information considered by the adoption panel before making a recommendation to the agency as to whether the prospective adopter is suitable to be an adoptive parent; and

(b)

such other information relating to the case as he and the relevant foreign authority may require.

5

The prescribed conditions for the purposes of section 56A(5) of the 1976 Act (conditions to be met in respect of a child brought into the United Kingdom in circumstances where that section applies) are –

(a)

prior to the child’s entry into the United Kingdom, a person must receive in writing, notification from the Secretary of State that he has issued a certificate confirming to the relevant foreign authority –

(i)

that the person has been assessed and approved as eligible and suitable to be an adoptive parent; and

(ii)

if entry clearance and leave to enter and remain, as may be necessary, is granted and not revoked or curtailed, and an adoption order is made or an overseas adoption is effected, the child will be authorised to enter and reside permanently in the United Kingdom;

(b)

except where an overseas adoption is effected, within the period of 14 days beginning with the date on which the child is brought into the United Kingdom, the person must give notice to the local authority within whose area he has his home of his intention –

(i)

to apply for an adoption order, in accordance with section 22 of the 1976 Act; or

(ii)

not to give the child a home.”

Domestic law also requires that an entry clearance be procured for the child in accordance with Rule 316A of the Immigration Rules. Since nothing turns for present purposes upon the detailed provisions of Rule 316A I need say no more about it.

It can accordingly be seen that the process of adopting a Cambodian child in circumstances such as those with which I am here concerned involves seven steps:

It will be appreciated that if entry clearance has not been obtained for the child in accordance with the Immigration Rules the child may be refused leave to enter the United Kingdom. It will likewise be appreciated that, whether or not they have obtained entry clearance for the child, prospective adopters commit a criminal offence under section 56A(7) when they bring a child into the United Kingdom if they have failed to comply with step (i) or if they have not been notified by the Secretary of State in accordance with step (iii).

Since 13 June 2003 intercountry adoption, which was previously the responsibility of the Department of Health (“DoH”), has been the responsibility of the Department for Education and Skills (“DfES”).

In May 2003 the DoH published the Intercountry Adoption Guide. At the same time it issued Local Authority Circular LAC(2003)12 entitled New Arrangements for Intercountry Adoption and Adoption Support Services. For present purposes the most important parts of the Intercountry Adoption Guide are to be found in Chapter 4 (Checking Eligibility of Prospective Adopters), Chapter 5 (Assessing the Suitability of Prospective Adopters) and Chapter 6 (Obtaining a Certificate of Eligibility and Sending Papers Overseas). I need not set out all the provisions to which I was referred. It suffices for present purposes if I draw attention to the key passages in Chapter 6:

“Checking of Applications

1.

On receipt of an application the intercountry adoption caseworker in the Department of Health will check that the statutory requirements have been met and the statutory procedures have been followed. They will also check that all the information required by domestic legislation and by the country being applied to has been provided.

2.

The caseworker’s checks will ensure that the information required by Regulation 4 of the Adoption (Bringing Children into the UK) Regulations 2003 has been provided in non-convention cases … They will also ensure that Regulation 8 and Schedule 1 of the Adoption Agencies Regulations 1983 … have been complied with as relevant.

3.

In summary the caseworker will generally check for the following prior to processing an application:

• The report states the country from which the prospective adopter wishes to adopt.

• The report includes the age, gender and characteristics of the children the prospective adopter has been approved as suitable to adopt.

• The report confirms the prospective adopter is eligible to adopt under domestic law and under the law of the country that they are applying to.

• The report meets the requirements set out in the relevant set of Regulations.

• … [etc]

4.

Beyond checking that the legislative requirements and procedures have been followed the Department of Health will not check the content of the home study or the supporting documents.

…

Issuing a Certificate of Eligibility and Suitability

6.

Once it has been confirmed that the documentation is in order and the statutory and good practice procedures have been complied with the Department of Health will issue a certificate (“the eligibility and suitability certificate”). This will confirm that the prospective adopter has been assessed in accordance with the statutory requirements, is approved as suitable to be an adoptive parent, and, subject to any entry clearance and immigration requirements, the child will be allowed to enter and reside in the UK.

7.

The intercountry adoption caseworker will write to the agency and the prospective adopter confirming that the Certificate of Eligibility and Suitability has been issued.

Putting Papers into Order prior to Sending Overseas

8.

The Department of Health caseworker will then arrange for any additional supporting documents and fees to be supplied to them by the prospective adopter. The caseworker will also advise the prospective adopter if there is a need for the documents to be translated, notarised or legalised (these requirements vary from country to country) and how to secure these services.

Sending Papers Overseas

9.

Once the papers have been notarised/ legalised as necessary and translated as required, the Department of Health will forward them to the relevant authority/ agency in the specified country. The caseworker will confirm in writing to the agency and the prospective adopter that the papers have been sent overseas.”

I draw attention, as Ms Helen Mountfield did in her submissions to me on behalf of the claimants, to the repeated use of the word “will” in paragraph 3 (“will generally check”), in paragraph 6 (“will issue a certificate”) and in paragraph 9 (“will forward them to the relevant authority”). I shall return to the significance of this in due course.

Similar language was used in the DfES country fact sheet for Cambodia in the form in which it appeared on the DfES website in the latter part of 2003 (“a Certificate of Eligibility and Suitability to Adopt will be issued and signed by a Department of Education and Skills official … The Department of Education and Skills will arrange for the Certificate of Eligibility and Suitability to Adopt … to be sent to … the British Embassy … Phnom Penh”) and in the DfES publication Adoption: Frequently Asked Questions in the form in which it too appeared on the DfES website in the latter part of 2003 (“the Casework Team … will issue a Certificate of Eligibility and Suitability … your papers will be sent via courier to the relevant Authority in the child’s country”). Ms Mountfield draws attention to the fact that in the latter document it was also said that:

“The UK does not impose any restrictions on which country you may adopt a child from”.

On 17 November 2003 the DfES published on its website Cambodian Adoption Law: Urgent Reminder which included the following:

“The DfES have been reminded by the British Embassy in Phnom Penn of the domestic laws in Cambodia relating to adoption. In essence these are:

Under Cambodian procedures, no mediator or adoption facilitator is allowed in the process. Furthermore the whole administrative process involving the three respective Cambodian ministries is officially, free of charge …

Should adoptive parents deviate from Cambodian domestic law, it could severely damage their chances of gaining entry clearance for the child and endanger their chances of readopting in the UK. Any requests to deviate from the above should be reported, with full details, to the British Embassy, Phnom Penn and the DfES at the earliest opportunity…

PLEASE NOTE - AS A CONSEQUENCE OF THE ABOVE, THE BRITISH EMBASSY CAN ONLY RELEASE PAPERS TO THE MINISTRY OF FOREIGN AFFAIRS UNDER DIPLOMATIC NOTE. UNDER NO CIRCUMSTANCES WILL THE EMBASSY RELEASE PAPERS TO FACILITATORS, LAWYERS ETC.”

In March 2004 the DfES published an updated country fact sheet for Cambodia. This contained the same statements as the earlier version had done (“a Certificate of Eligibility and Suitability to Adopt will be issued and signed by a Department of Education and Skills official … The Department of Education and Skills will arrange for the Certificate of Eligibility and Suitability to Adopt … to be sent to … the British Embassy … Phnom Penh”) but was now prefaced with the following warning:

“Before reading this fact sheet, the DfES would draw to the attention of potential adopters from Cambodia the possible difficulties in pursuing an adoption from this country.

There have been international concerns over the propriety of the Cambodian adoption process. The DfES suggests that potential adopters contact their Local Authority or registered Voluntary Adoption Agency for further advice.

There are continuing concerns over a range of issues such as incomplete child histories, genuine parental consent to the adoption or the consent of carers, inaccuracies or contradictions in the official paperwork and unsubstantiated abandonments. These issues may cause delay when applying for Entry Clearance but may also effect [sic] the outcome when readopting in a court in England and Wales.”

Thus the seeming state of affairs immediately before the announcement on 22 June 2004 of the Secretary of State’s decision to impose a temporary suspension on intercountry adoptions from Cambodia.

The background to this case, and the context in which the disputes I am concerned with fall to be considered, are two grave social and institutional problems afflicting Cambodia:

There is clear evidence that this wrongdoing has, unhappily, affected adoptions of Cambodian children by United Kingdom residents. The Secretary of State is understandably limited in the details she can give of confidential information in her possession relating to those who, I emphasise, are not involved in this litigation. But she is aware of cases of children falsely described in official Cambodian documents and is directly aware of one case in which adoptive parents were asked by officials in MoSALVY – the Cambodian Ministry of Social Affairs, Labour, Vocational Training and Youth Rehabilitation – for money to “process” their papers, notwithstanding the official Cambodian position that all Cambodian government participation in the process is free of charge.

Although, as the Secretary of State rightly accepts, a properly operating system of intercountry adoptions from Cambodia might well ameliorate the humanitarian crisis, the concerns of the international community about current adoption processes in Cambodia have led a number of countries – Belgium, Canada (except Quebec), Finland, France, Luxembourg, the Netherlands, Switzerland, the United Kingdom and the United States of America – to suspend adoptions from Cambodia. These countries, it would seem, have concluded, like the Secretary of State, that the disadvantages of allowing the continuation of the present deeply-flawed adoption ‘industry’ outweigh the disadvantages flowing from a suspension of such adoptions.

The claimants do not dispute that these are serious and legitimate matters of concern to the United Kingdom authorities. They accept that these are undoubtedly matters which should play a central role in the exercise of their powers by the immigration authorities and entry clearance officers when scrutinising individual applications to permit a child to be brought to the United Kingdom for the purposes of adoption. But they challenge not merely the way in which the Secretary of State has gone about her attempt to address these problems but also, and more fundamentally, her very power to do so.

On 21 December 2001 the United States of America, which has traditionally been the largest ‘importer’ of adopted children from Cambodia, imposed a general ban on adoption from Cambodia.

In May 2002 LICADHO – the Cambodian League for the Promotion and Defense of Human Rights – gave written evidence to the International Relations Committee of the United States House of Representatives during its hearing on International Adoptions. LICADHO recommended the continued suspension of adoptions of Cambodian orphans into the United States “until a transparent and regulated adoption system is established in Cambodia”. Its evidence included the statement that “the limited information obtained by LICADHO … is enough to raise serious concerns about the adoption system” and continued:

“In the past two years, LICADHO investigations have found direct, credible evidence of child trafficking by people associated with four orphanages which provide children for adoption to the US. In addition LICADHO has received information alleging other improprieties, such as the preparation of fraudulent paperwork for ‘orphans’, by a number of other orphanages and adoption facilitators.”

In May 2003 the Royal Netherlands Embassy in Bangkok drew further attention to these problems in International Child Adoption in Cambodia: A Situation Report. Recording that although “allegations of baby selling and trafficking are widespread … only few cases reach the attention of human rights investigators” the authors commented that such cases “seem to represent only the visible side of the iceberg.” The Report continued:

“The fact that thorough investigations – whenever they could be conducted – have often confirmed the allegations, seems to indicate indeed that the extent of the problem is important, and does require serious attention.

The lack of transparency in the system provides the necessary screen for corrupt practices to take place within ministries, but also for so-called “adoption facilitators” to exploit the adoption “market” for their sole profit.

In other words, the current official adoption system in place … has insufficient safeguards to prevent serious abuses, such as baby selling and baby trafficking, and to protect birth and adoptive parents.”

The Report also made the point that those countries with experience of processing the largest quantity of Cambodian adoption dossiers, and thus with the most knowledge of the situation – notably the United States of America and France – were precisely those countries that had suspended adoptions from Cambodia.

Concerns about the situation in Cambodia had been raised by the British Embassy in Phnom Penh even before the publication of the Dutch report. By November 2003, as the evidence filed on behalf of the Secretary of State puts it,

“the Embassy was raising specific concerns about the systematic falsification of Cambodian official documents related to the adoption of children; extensive involvement of adoption facilitators in the adoption process in Cambodia; facilitators procuring children for intercountry adoption, including by coercion and paying birth mothers to give up their children; and the prevalence of child trafficking and the general state of corruption in Cambodia.”

At about the same time serious problems began to surface in certain individual cases involving prospective British adopters. Steps were accordingly taken both to ensure that prospective adopters adhered to existing Cambodian laws and procedures – hence the publication on 17 November 2003 of the Urgent Reminder on the DfES website – and, in conjunction with Cambodian officials, to clarify intercountry adoption procedures between the United Kingdom and Cambodia with a view to ensuring that as far as possible the correct procedures were adhered to. From November 2003 onwards the DfES closely monitored the situation in Cambodia. Its appraisal was that the evidence of systemic irregularities was mounting. (I should add that concerns were increased because of the rising number of applications from prospective adopters seeking to adopt Cambodian children: from 6 in 2002 to 40 in 2003 and 18 in the first half of 2004.)

On 31 December 2003 DfES officials met the then British Ambassador to Cambodia to discuss joint concerns with him. He suggested that the DfES should consider a visit to Cambodia in early 2004. Between 9 and 16 February 2004 two officials from DfES, Jeremy Cogle, the head of the DfES’s inter-country adoption team, and a colleague from the DfES’s policy team, went to Cambodia to investigate the working of the Cambodian adoption system. On 18 February 2004 they had a meeting with DfES lawyers: the conclusion was that the Cambodian adoption system was not compatible with the United Nations Convention on the Rights of the Child. Their report (“the Cogle Report”) was finalised in May 2004.

The Cogle Report is a detailed and impressive document, recording and detailing, amongst other things, the DfES team’s extensive meetings with a number of individuals: Cambodian officials, employees of a NGO working in Cambodia, an employee of LICADHO, employees of various western embassies in both Cambodia and Thailand and a Cambodian orphanage director. It records (paragraph 3) that at the meeting on 31 December 2003 the British Ambassador had raised a number of concerns about adoption practice in Cambodia including:

“• Systematic falsification of Cambodian official documentation relating to the adoption of children;

• Extensive involvement of adoption facilitators participating in the adoption process in Cambodia. Facilitators are not permitted under the Cambodian law on adoption;

• Facilitators procuring children for adoption by UK residents and residents of other countries, including by paying or coercing birth mothers to give up custody of their children; and

• The level of corruption and trafficking in Cambodia generally and its impact on the Cambodian adoption procedure.”

The Cogle Report included amongst its findings (paragraph 122) that “there appears to be no procedure within the Cambodian intercountry adoption system to consider the best interest of the child” and (paragraph 131) that “there is also no requirement … for the birth parent of a child to be adopted to either: (i) give their informed consent to adoption; or (ii) be given any information about the consequences of adoption.” Its main conclusions (paragraphs 139-144) included the following:

“139

We do not believe that any of the evidence or information given to us by these organisations is conclusive evidence of widespread child trafficking in relation to intercountry adoption. However, we believe that this [sic] would be extremely difficult to obtain conclusive evidence because of the level of corruption generally in Cambodia, concerns over fraudulent documentation and the overall social climate of the country (i.e. the basic infrastructure and lack of fully formed government).

…

141

We consider that the Cambodian procedures for intercountry adoption … are not compliant with article 21 of the UN Convention on the Rights of the Child. We do not consider that there is any consideration of alternatives to intercountry adoption in respect of the child or the birth parents, or that the procedure is being enforced by competent authorities. Nor is there any consideration of whether intercountry adoption is in the best interests of the child. The scale of expenses paid by adopters is not transparent. We consequently consider that the Cambodian adoption procedure is fundamentally flawed and does not meet the standards required by articles 7, 8 and 21 of the UNCRC.

142

We also consider that the MoSALVY [and others] and the orphanages, who are performing the role of competent authorities, are not capable of applying the procedures consistently. Applications that appear to be ineligible are all treated as exceptional case. Adopters are not permitted to apply to adopt named children but exceptions are made. Facilitators are not allowed to participate but representatives and orphanage directors may facilitate adoptions. The operation of the system appears to be so flexible that the procedures may as well not exist at all. Even if the … procedures were to afford some protection to children and birth parents (although we do not believe it does, see paragraph 141), we believe that the Cambodian authorities are not capable of enforcing the Cambodian legislation on intercountry adoption in the vast majority of cases.

143

The incentive for an orphanage funded solely by donations from adopters to ensure that it has the type of children wanted by intercountry adopters is significant yet there is no conclusive evidence of widespread child trafficking. However, the cases documented by the US Embassy, LICADHO and the Royal Netherlands Embassy, in addition to the cases handled by the Embassy and the Department, all suggest that there is potential for widespread trafficking.

144

In summary, we do not know for certain how widespread the child trafficking in Cambodia is in relation to intercountry adoption. However, there is a great deal of potential for child trafficking to be endemic and we consider that the flawed operation of the fundamentally flawed intercountry adoption system that exists in Cambodia is completely insufficient to prevent it.”

In March 2004, as I have said, a new country fact sheet was published by the DfES on its website stating that concerns as to the Cambodian adoption system

“may cause delays when applying for entry clearance, but may also affect the outcome when readopting in a court in England and Wales.”

On 24 March 2004 ITV News broadcast a report of what it described as “disturbing evidence of an illegal trade in babies in Cambodia”. The Minister of State was quoted as having told ITV that “suspending British adoptions from Cambodia was one possibility” and was shown, when interviewed, as saying “if I come to the view that children are being forcibly removed from their birth mothers we will of course take immediate appropriate action.”

On 5 April 2004 officials put up their first submission to the Minister of State. Three broad options were identified: (i) to take no specific action and continue handling applications in the same way; (ii) to try to introduce additional safeguards; and (iii) to introduce a temporary suspension of adoptions from Cambodia until it could be certain that adoptions would proceed properly. No final decision at that stage was possible, for the Cogle Report was still being compiled, but the recommendation from officials was that the Minister agree to them working up detailed proposals on how a temporary suspension could work if the Minister ultimately decided that one should be imposed. In the event the Minister requested proposals about how a temporary suspension would work should she decide to pursue that option. That no doubt explains why on 8 April 2004 a DfES official sent an e-mail to the British Embassy in Phnom Penh saying:

“I’ve just heard back from Margaret Hodge’s office re: the submission … put up on Monday. She has agreed our recommended option and has asked us to work up more detailed proposals for her consideration. She is also keen to agree this across Government ASAP, and I think we should be able to move fairly quickly – although we need to consider just how quickly is feasible.”

On 14 May 2004 a further submission was put up by officials to the Minister of State. This included the Cogle Report and detailed submissions, including a table or grid showing the various mechanisms that could be used to introduce a suspension and the several different points in the adoption process where a suspension could come into effect. The grid considered each of the three options that had been put up to the Minister in April 2004 (take no additional action and allow adoptions to continue; introduce additional safeguards and allow adoptions to continue; impose a temporary suspension) and identified six different – and increasingly severe – options for imposing a temporary suspension (DfES refuse to accept papers received after X date; DfES refuse to continue processing papers after X date; DfES recall papers that are with the Embassy at X date; DfES ask Embassy to recall papers where referral not yet made; DfES refuse to pass on referrals received to prospective adopters’ adoption agency; DfES request that all applications for entry clearance are refused). Each of the eight options was then analysed by reference to five criteria (extent to which addresses concerns identified; issues raised by taking this step and how to address them; impact on children; impact on prospective adopters; practical considerations). It was estimated that options 3-7 (the first five of the six options for imposing a temporary suspension) would leave respectively 30, 24, 23, 9 and 4 applications able to continue.

It appears that the official advice to the Minister of State was threefold:

On 18 May 2004 the Minister indicated to officials that she was minded to introduce a temporary suspension, subject to cross-Government agreement.

In the meantime however, and right up until the time when the suspension was announced on 22 June 2004, it was the policy of the DfES to say, in response to any inquiries, that applications were being “processed in the normal way”. It was made clear to officials that this was the ‘line to take’ and that no mention should be made of the possibility of a suspension. This was done quite deliberately, for reasons explained in the evidence filed on behalf of the Secretary of State as follows:

“This was a deliberate approach. The Department was keen to avoid a rush to adopt from Cambodia. We feared that if we mentioned or suggested that the introduction of a suspension was imminent, those in Cambodia who had a significant financial interest in the adoption business there, as well as those in the UK who were keen to adopt from Cambodia, might take steps to try to complete adoptions before the suspension took effect. Not only would the intended protection of the suspension for the children involved in these adoptions be evaded by rushing their case through, the pressure to complete those adoptions before an impending deadline might actually exacerbate the abuses of the Cambodian system which had been seen to exist. Likewise, for similar reasons the notion of “pipeline” cases was not mentioned in any guidance, on the website or in any communication (verbal or written) to any individual or organisation.”

On 21 June 2004, following notification of cross-Government agreement, the Minister confirmed to officials that she still wished to proceed with the introduction of a temporary suspension.

On 22 June 2004 the Secretary of State’s decision to suspend adoptions from Cambodia was announced in a written statement to the House of Commons by the Minister of State. The key passages in her statement read as follows:

“I believe that the safeguards in the Cambodian adoption system are currently insufficient to prevent children being adopted without proper consents being given by their birth parents and improper financial gain being made by individuals involved in the adoption process.

The specific areas of concern include:

Evidence relating to the systematic falsification of Cambodian official documents related to the adoption of children;

Evidence relating to the extensive involvement of adoption facilitators in the adoption procedure in Cambodia even though Cambodian law expressly forbids facilitators participating in the adoption process;

Evidence relating to the procurement of children for intercountry adoption by facilitators, including by coercion and by paying birth mothers to give up their children and;

Concern about the prevalence of children trafficking and corruption generally in Cambodia.

The temporary suspension will take effect immediately and will be imposed on all UK applications to adopt children from Cambodia where the prospective adopter has not yet received a matching report from the Cambodian authorities. This is the latest point in the adoption process in Cambodia where a temporary suspension could take effect before a Cambodian adoption certificate is issued.”

The Minister added:

“Only in exceptional circumstances will I consider that the temporary suspension should not apply in a particular case. Any decision relating to a particular case will of course take account of what is in the best interests of the child and all the facts of the particular case.”

The temporary suspension – which is still in force – took effect immediately upon the announcement of the decision. Strenuous efforts were made by DfES officials the same day, initially by telephone and then by letter, to contact prospective adopters whose applications would be affected by the suspension. The letters, in standard form, informed applicants that the DfES

“is therefore no longer able to process applications in respect of adoptions from Cambodia and I regret to inform you that your application to adopt a Cambodian child will be unable to proceed.”

The DfES prepared a Press Briefing arranged in question and answer format. The answer to the question

“Could extra checks and safeguards be introduced instead of suspending adoptions?”

was

“No, because we do not believe that there are any extra checks or safeguards that would allow us to be certain that birth mothers have not been paid or coerced to give up their children. The UK requires additional checks and safeguards for adoptions from Guatemala. The British Embassy in Guatemala City administers DNA testing and interviews the child’s birth parents to establish that the child is being freely given up for adoption by the birth family. The Guatemalan children being offered for adoption in Guatemala are always presented by someone who claims to be a birth relative, which allows the British Embassy to check and verify that person’s story. However, in Cambodia most children are described as abandoned with no information about the birth family, which makes it virtually impossible to trace the child’s birth parents.”

The answer to the question

“Will there be any exceptions to the suspension?”

was prefaced by the rubric “[For answer only if pressed]” and read

“Only in exceptional circumstances will the Government consider that the temporary suspension should not apply in a particular case. Any decision regarding an exception will, of course, take into account the best interests of the child and all the facts of a particular case.”

From mid-July 2004 onwards DfES officials convened with legal advisers to consider applications for exceptions to the suspension and to provide advice to the Minister. Guidance was established by the DfES, subsequently disclosed to the claimants under cover of a letter dated 17 August 2004, on how requests for an exception would be handled. Paragraph 5 of the Guidance stated that:

“In reaching a decision there will be three sets of factors to take into account: those relating to the child, including its identity where known; those relating to the circumstances of the prospective adopters; and those relating to the circumstances of adoptions in Cambodia, both generally and specifically in individual cases.”

Paragraph 6, relating to the child, stated that:

“In relation to the child, the factors to be taken into account may include:

- in respect of an identified child, the circumstances of that identification, and in particular whether this was in compliance with the Cambodian law on adoption;

- in respect of an identified child, the category of child to be adopted;

- the age of the child, with particular regard to the age requirements set out by the Cambodian sub-decree on intercountry adoption and the relative risks of child trafficking;

- any special needs of the child, e.g. any health and/or educational needs of the child;

- the circumstances in which the child is alleged to have become available for intercountry adoption;

- the likelihood of such a child being successfully placed in an adoption or fostering arrangement or being cared for in any other suitable manner in Cambodia;

- the likely risks to that child if intercountry adoption does not proceed;

- any information about the child’s birth family and/or the likelihood of the child being freely given up by its birth family.

This list is not exhaustive.”

Paragraph 7, relating to the prospective adopters, said that:

“Any decision must also take account of the circumstances of the prospective adopters. Consideration will start from the presumption that the assessment and subsequent report by the adoption agency on the prospective adopter is accurate … ”

Paragraphs 8 and 9, relating to the circumstances of adoptions in Cambodia said that:

“In reaching any decision, account must be taken of the circumstances of both:

i adoptions in Cambodia generally; and

ii the proposed adoption in a particular case.

Consideration will be given to factors such as:-

- compliance with Cambodian adoption procedures;

- the risks of an identified or unidentified child being trafficked;

- any other information considered relevant.

This list is not exhaustive.”

I am told that as of 19 January 2005 the Minister has decided to lift the suspension in only two cases, neither of them involving any of the claimants.

As I have said, the proceedings relate to six couples. By 22 June 2004 their attempts to adopt Cambodian children had reached various stages in the process. The furthest advanced was one couple, the eleventh and twelfth claimants, to whom the Secretary of State had given notification under Regulation 5(a) of the 2003 Regulations on 15 March 2004. No certificate had been issued in any other case. The least advanced was another couple, the fifth and thirteen claimants, whose assessment, although it had been completed, had not been finally approved by the adoption agency.

On 13 February 2004 the Welsh Assembly Government had written to the eleventh and twelfth claimants – they live in Wales – to inform them that they had been approved as prospective adopters of a child or twins from Cambodia and that all the relevant documents had been sent to the DfES “where a certificate will be prepared”. The letter went on to say that the DfES “will arrange for the Certificate of Eligibility to Adopt … and supporting documents to be sent to … the British Embassy … Phnom Penh”. On 2 March 2004 the DfES adoption unit wrote to the eleventh and twelfth claimants sending them a copy of the updated country fact sheet for Cambodia. On 15 March 2004 the unit wrote to them again to confirm that a Certificate of Eligibility to adopt had been affixed to their application. On 14 April 2004 the DfES wrote again, this time to confirm that “your adoption application has been sent to the British Embassy in Phnom Penh.” It was pointed out that “this letter should not be seen as an indication that entry clearance will be automatically granted.”

On 22 June 2004 the suspension came into effect. The certificate which had been given in relation to the eleventh and twelfth claimants was withdrawn. More precisely, what appears to have happened is this. The certificate had already been sent via diplomatic channels to MoSALVY and a request was made by the United Kingdom to MoSALVY for the return of the certificate.

On 12 August 2004 applications by two couples, the sixth and fourteenth claimants and the eleventh and twelfth claimants, to be considered as special cases under the ‘exceptional circumstances’ procedure were refused by the Secretary of State. The decision letters were in similar form. The key paragraphs in the letter to the eleventh and twelfth claimants (the corresponding paragraphs in the letter to the sixth and fourteenth claimants were virtually identical) read as follows:

“You have been assessed and approved as suitable to adopt one child or twins of either gender aged 0-12 months from Cambodia. The Minister took into account the high likelihood that such a child or children could be successfully placed in an adoption or fostering arrangement or be cared for in another suitable manner in Cambodia. The Minister also noted that the risk of trafficking in such a child or children is relatively high and that there are no effective safeguards or checks that could be used in addition to the Cambodian adoption procedure to remove this risk.

Taking into account all the circumstances of your case, the Minister considered that there would be a significant risk that you would be matched with a child or children who may not have been freely given up for adoption by their birth family. He therefore did not consider that the best interests of any child or children who may be matched with you in these circumstances would be served by intercountry adoption.

I am sorry to have to inform you that the Minister, taking into account all of the information available to him about the facts and circumstances of your case, decided not to make an exception to the temporary suspension for your application.”

On various dates between 27 September 2004 and 23 November 2004 renewed applications by those two couples and applications by the other four couples to be treated as ‘exceptional circumstances’ cases were all refused by the Secretary of State. Very similar reasons were given. Thus, in the letter dated 27 September 2004 to the fifth and thirteenth claimants this was said:

“You have been assessed and approved as suitable to adopt one female child aged 0-12 months from Cambodia. The Minister took into account the high likelihood that such a child could be successfully placed in an adoption or fostering arrangement or be cared for in another suitable manner in Cambodia. Your letter of 27 August commented that paragraph 11 of the report by DfES officials “recognises that domestic adoption in Cambodia is “extremely rare” and fostering is “limited””. I am afraid that you have taken this part of the report out of context as this was the understanding of DfES officials before visiting Cambodia. The report by DfES officials found that, although the use of domestic adoption and fostering in Cambodia is limited, there are programs that have successfully recruited prospective foster carers. Paragraph 89 of the report highlights the work of a NGO that has recruited prospective foster carers in Cambodia but that the majority of these carers are not being used because of the preference for care within the wider family. The report also highlights the work done by the NGC to support orphaned children within their wider family.

The Minister also noted that the risk of trafficking in such a child is relatively high. You suggested a number of practical measures, including seeking a match from selected orphanages, commissioning a “birth search” and passing monies through the British Embassy. The Minister has given careful consideration to the possibility of introducing such additional safeguards. However, the Government does not consider that there are any effective safeguards or checks that could be used in addition to the Cambodian adoption procedure to remove this risk.

Taking into account all the circumstances of your case, the Minister considered that there would be a significant risk that you would be matched with a child who may not have been freely given up for adoption by her birth family. Although the Minister recognises that your daughter could benefit from having an adoptive sibling from the same background, she did not consider that this would outweigh the risk of you being matched with a child that had not been freely given up for adoption. She therefore did not consider that the best interests of any child who may be matched with you in these circumstances would be served by intercountry adoption.

I am sorry to have to inform you that the Minister, taking into account all of the information available to him about the facts and circumstances of your case, decided not to make an exception to the temporary suspension for your application.”

The claimants’ solicitors wrote a pre-action letter to the Secretary of State on 9 July 2004 followed by a pre-action protocol letter on 12 August 2004. The Secretary of State responded to the pre-action protocol letter on 15 September 2004. The application for permission to apply for judicial review was issued on 21 September 2004. Additional grounds of challenge were added by an additional statement of grounds lodged on 11 November 2004. Sir Michael Harrison made an anonymity order in relation to the fifth, thirteenth and fifteenth claimants on 19 November 2004. Charles J granted permission on 22 December 2004. Detailed grounds of defence were lodged on 19 January 2005 together with detailed witness statements from Mr Cogle and from David Holmes, the senior responsible official in the DfES. On 10 February 2005 the claimants’ solicitors made a very detailed written open proposal for settlement of the proceedings. It was rejected by the Secretary of State on 2 March 2005.

On 30 March 2005 the claimants made an application for specific disclosure under CPR 31.17(3) of documents relating to the enquiries, if any, which the Secretary of State had made as to possible alternatives to imposing the temporary suspension on those cases ‘already in the pipeline’. Voluntary disclosure of these documents had previously been sought and declined. Some, but not all, of the material sought was disclosed together with a response submission lodged on 7 April 2005. A reply was lodged on 8 April 2005. On 11 April 2005 Sullivan J directed that application to be dealt with by the judge hearing the substantive application.

The matter came on for hearing before me on 18 April 2005. The hearing lasted three days. On 20 April 2005 I reserved judgment, which I now (4 July 2005) hand down.

The named defendant is a Minister of State in the DfES. Mr Philip Sales, who appears together with Mr Robin Tam on the instructions of the Treasury Solicitor, correctly observes that the proper defendant is the Secretary of State, but otherwise takes no point on the misnomer. Like him I will accordingly refer to the Secretary of State where appropriate rather than to the Minister of State.

The claimants challenge four different decisions of the Secretary of State:

The claimants’ case has two limbs. The first is that, as the law is presently structured, the Secretary of State has no power to withhold a certificate of eligibility and suitability to adopt and that her duty to issue such certificates does not afford her the power which she has purported to exercise to suspend adoptions. It is, says Ms Mountfield, the immigration authorities, and not the Secretary of State, who have the power (to be exercised consistently with international law) to ensure that trafficked children are not adopted by prospective adopters in the United Kingdom.

The second limb, which arises for decision only if the first limb fails, is, in the alternative, that even if (contrary to the primary submission) the Secretary of State had any power to suspend the issue of certificates, such power has not been lawfully and fairly exercised by the Secretary of State in the cases of the very small number of families who were, as Ms Mountfield would have it, far advanced in the process of adopting from Cambodia but who “by chance” – her phrase – had not, at the time that the decision was announced, yet been matched with a child. (Mr Sales takes issue with this characterisation of the circumstances, pointing out that, contrary to the impression sought to be created, none of the claimants had reached a particularly advanced stage in the adoption process at the time when the suspension was announced. As I have already noted, with the sole exception of the eleventh and twelfth claimants no certificate had been issued to any of the claimants and in the case of the fifth and thirteenth claimants the assessment, although it had been completed, had not been finally approved by the adoption agency.) Ms Mountfield’s case is that if the Secretary of State did indeed have power to withhold a certificate, then the exercise of that power was nonetheless unlawful (being contrary to the claimants’ rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Human Rights Act 1998), irrational and unfair.

The claimants seek declarations that:

The challenges to the Secretary of State’s decisions are set out in ten different grounds of complaint, divided into two groups, which Ms Mountfield formulated as follows:

Ms Mountfield says that there cannot be any dispute – and she does not understand the Secretary of State to dispute – that there are genuine orphans in Cambodian orphanages unable to be cared for in a family environment. There is, however, a dispute, as to the extent to which alternative safeguards could be put in place to ensure that no British prospective adopter unwittingly adopted a trafficked child or placed such a child in “limbo” as a matter of Cambodian law. Ms Mountfield asserts that there were, and remain, a number of options which could have been exercised within the existing legal framework in order to ensure that, in these few “transitional” cases at least, prospective adoptive parents who had been judged by the relevant statutory authorities to be suitable people to adopt from Cambodia could have been matched with children for whom it could be established that they were genuinely available for adoption and unable to be cared for in other potentially acceptable family environments. The Secretary of State does not agree, though according to Ms Mountfield her reasons have varied from time to time. The Secretary of State has, she says, said variously that alternatives to the imposition to a ban on intercountry adoptions from Cambodia could work in the short-term; have been considered but rejected as unworkable; and have been considered but rejected for reasons, inter alia, of cost. Ms Mountfield submits that although the Secretary of State has identified a number of putative problems with the use of alternative mechanisms within the existing statutory framework, instead of the application of a ban on transitional-case adoptions continuing, these perceived problems are more illusory than real, and can all be met by the claimants’ proposed safeguards procedure.

The point is important because, as Ms Mountfield observes, and as we shall see in due course, the Secretary of State seeks to meet a number of the claimants’ submissions (on legitimate expectation, on the operation of the ‘exceptional circumstances’ procedure, and on the disproportionate infringement of the fifteenth claimant’s Article 8 rights) with the argument that they are defeated by an overriding public interest in avoiding and discouraging child trafficking from Cambodia. Ms Mountfield submits, however, that if it can be shown that the public interest can be met in a less intrusive manner, the Secretary of State’s argument that the claimants’ rights must bow to the greater public good is not made out on the facts.

Ms Mountfield further submits that if and insofar as the Secretary of State is arguing that the application of such safeguards would be excessively costly, she must give some approximate costings, not merely make the assertion in submissions and decline to disclose the evidential basis for it. This feeds into the application Ms Mountfield makes for specific disclosure of certain documents.

In support of this part of her case, Ms Mountfield makes a number of preliminary points:

Ms Mountfield identifies a number of additional safeguards which, she says, could work and which would obviate the need for a blanket ban, at least in the transitional cases:

Ms Mountfield seeks to meet three further difficulties identified by the Secretary of State:

I have set these submissions out in some detail because it is important to understand how the claimants put their case. But it will be appreciated that it is not my function to express any views on the claimants’ proposals as such, nor to adjudicate upon some general issue as to whether the claimants’ view of matters is or is not to be preferred to that which, in the event, commended itself to the Secretary of State. My only function is to determine whether any of these submissions give the claimants some specific basis for challenging what the Secretary of State has done. Accordingly, I shall deal with these various points, though only to the extent necessary to do so, as and when I come to consider Ms Mountfield’s specific grounds of complaint.

As I have said, I have before me an application for specific disclosure under CPR 31.17(3) of documents relating to the enquiries, if any, which the Secretary of State had made as to possible alternatives to imposing the temporary suspension on those cases ‘already in the pipeline’. Some, but not all, of the material sought was disclosed together with the response submission lodged on 7 April 2005.

As the application was developed in argument before me, Ms Mountfield made clear that the question to which the documents related was why, if at all, the Secretary of State decided that safeguards were an inappropriate mechanism for dealing with pending cases, given, in particular, that it had been considered a possibility, in the short term, in the grid put before the Minister in May 2004 and that it had been left open in the options put before the Minister in June 2004. She focussed on three issues in particular:

As will be appreciated, these go in particular to the complaints in grounds 5, 6, 7, 8 and 10.

The application is grounded, as I understand it, on what are, in effect, said to be the unanswered questions raised, in particular, and especially when the three documents are read together, by an e-mail from the British Embassy in Phnom Penh on 7 April 2004, a letter from the Embassy to the DfES dated 23 August 2004 and an e-mail from the Embassy to the fourteenth claimant on 12 January 2005. (The first and second of these documents have been made available only in redacted form.) These materials, says Ms Mountfield, disclose a lacuna in the evidence. She cannot say where the evidence she is looking for might be found; hence the application is framed in terms of an order for disclosure of what Ms Mountfield herself calls “unusual breadth”.

Mr Sales resists the application. He submits that the application is founded on misapprehensions that the Secretary of State has withheld relevant documents and made her decision on the basis of considerations which have not been disclosed. Both, he says, are incorrect. Specifically he makes the following points:

An important element in Ms Mountfield’s application is her assertion that the three documents from the Embassy show that the primary difficulties identified by the Embassy were “priorities” and “resources” rather than the effectiveness or practicability of possible safeguards. But the evidence from Mr Holmes on behalf of the Secretary of State, which there is no reason not to accept, is that costings were not put to the Minister and that resources are not the issue. The Secretary of State’s core case is that safeguards are impracticable. Moreover, Mr Holmes’s evidence is to the effect that the materials which have been disclosed to the claimants contain all the relevant information in the official submissions that were put up to the Minister in May and June 2004.

Ms Mountfield asserts, and Mr Sales does not of course dispute, what Laws LJ in Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Limited [2002] EWCA Civ 1409 at para [55] called:

“high standards of candour which are routinely adhered to by government departments faced with proceedings for judicial review.”

See also the comments of the same judge in R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067 at para [63], commending the defendant for having:

“disclosed without cavil or argument all the material documents contained in the files of government departments, some of which (as will be obvious from the narrative I have given) are embarrassing and worse”.

This, as he said:

“exemplified a high tradition of co-operation between the executive and the judiciary in the doing of justice; and upholding the rule of law.”

The principles governing disclosure in judicial review proceedings are to be found most conveniently set out in R v Secretary of State for Foreign and Commonwealth Affairs ex p World Development Movement Ltd [1995] 1 WLR 386, quoting from the judgments of Dillon and McCowan LJJ in R v Secretary of State for the Environment ex p Islington London Borough Council [1991] CAT 1991/761. In the latter case Dillon LJ, referring to the acceptance by the Court of Appeal in an earlier case of a submission by Mr Laws, as he then was, said:

“The … argument is stated to have been that an applicant is not entitled to go behind an affidavit in order to seek to ascertain whether it is correct or not unless there is some material available outside that contained in the affidavit to suggest that in some material respect the affidavit is not accurate. Without some prima facie case for suggesting that the affidavit is in some respects incorrect it is improper to allow discovery of documents, the only purpose of which would be to act as a challenge to the accuracy of the affidavit. With that I would, in general, agree – and indeed the decision binds us. But I would add the qualification that if the affidavit only deals partially, and not sufficiently adequately, with an issue it may be appropriate to order discovery to supplement the affidavit, rather than to challenge its accuracy. That must depend on the nature of the issue.”

It is upon the ‘qualification’ that Ms Mountfield particularly relies. McCowan LJ in the same case said:

“The second matter which emerges from the authorities is that unless the applicant in judicial review is in a position to assert that the evidence relied on by a minister is false, or at least inaccurate, it is inappropriate to grant discovery in order to allow the applicant to check the accuracy of the evidence in question.”

In R v Secretary of State for Foreign and Commonwealth Affairs ex p World Development Movement Ltd [1995] 1 WLR 386, the application for disclosure was dismissed for reasons explained by Rose LJ at p 397:

“although the affidavits of the respondent and of Mr Manning give manifestly incomplete summaries of the minutes (to which indeed neither of them refers) and of the advice tendered to the Secretary of State, the respondent’s letter of 11 May 1994 provided, in the circumstances of this case, an effective answer to the claim for discovery when taken in conjunction with the summaries of the minutes exhibited elsewhere in the evidence. There appeared no basis, looking at this total picture, for questioning the accuracy of those summaries, which, in the light of Ex parte Islington London Borough Council, seems to be a necessary prerequisite for granting discovery of original documents. Furthermore, the summaries, in my view, provided the applicants with highly valuable ammunition to which it seemed unlikely that the minutes themselves would materially add. I was, therefore, wholly unpersuaded that disclosure of these minutes was necessary for the fair disposal of the issues in this case. It was for these reasons that we indicated at an earlier stage that disclosure would not be ordered.”

The reference to “valuable ammunition” takes me naturally to the final point, made by Laws LJ in Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Limited [2002] EWCA Civ 1409 at para [50]:

“there is no duty of general disclosure in judicial review proceedings. However there is – of course – a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide. The real question here is whether in the evidence put forward on his behalf the Secretary of State has given a true and comprehensive account of the way the relevant decisions in the case were arrived at. If the court has not been given a true and comprehensive account, but has had to tease the truth out of late discovery, it may be appropriate to draw inferences against the Secretary of State upon points which remain obscure: see Padfield [1968] AC 997, per Lord Upjohn at 1061G – 1062A.”

I am not going to order further disclosure. Ms Mountfield, in my judgment, has failed to bring herself within the principles identified by Dillon LJ and McCowan LJ in Ex p Islington London Borough Council. Essentially for the reasons articulated by Mr Sales, I am wholly unpersuaded that further disclosure is necessary for the fair disposal of the issues in this case. In this connection I should point out that a very substantial volume of material has been disclosed by the Secretary of State. The documents and evidence relied upon by the parties run to some 870 pages, and a far from insignificant part of that comprises either documents disclosed by the Secretary of State or evidence in the form of witness statements by Mr Cogle and Mr Holmes filed on behalf of the Secretary of State. These witness statements alone run to some 60 or so pages. I am quite satisfied that the voluminous materials and other evidence which have been provided by or on behalf of the Secretary of State enable me to do full justice to the claimants, without imposing on the Secretary of State the unnecessary burden of providing yet further materials, even assuming (which in large part is simply not the case) that the Secretary of State does in fact have relevant documents which have not been disclosed.

It is convenient to take ground 1 together with ground 2.

Ms Mountfield submits (ground 1) that, in each case, by declining to issue a certificate, the Secretary of State has acted unlawfully – ultra vires –, misinterpreted her own role in the statutory process of intercountry adoption, misunderstood the purpose of such certificates in that process, and wrongly withheld a certificate when all the statutory conditions for its exercise have been met, or (ground 2) that she has abused her power, and acted irrationally, by refusing to issue a certificate having taken into account factors irrelevant to the issue of that discretion.

It is trite law, says Ms Mountfield, that public authorities must have the legal authority to act. Public authorities must exercise their legal powers for the purposes for which they were given, and must exercise them in a manner which is relevant to the purpose for which they were granted and which does not frustrate the policy of a statutory scheme. The Secretary of State’s role in issuing a certificate is entirely statutory, says Ms Mountfield, and confined to the statutory purpose of the certification procedure.

It is not in dispute that the DfES is the sponsoring department, responsible (since 2003) from intercountry adoption policy, and for making the regulations under which intercountry adoptions take place. She does not dispute that a decision by the Secretary of State, for example, as to whether to negotiate an international agreement on child protection would not be justiciable.

But the power lawfully to make arrangements for overseas adoptions falls, she says, exclusively upon local authorities and voluntary adoption agencies: see section 11 of the 1976 Act. The DfES has no part to play in this process, and indeed, for a non designated body or person to make such arrangements would be a criminal offence. So the clear implication is that the role of DfES under regulation 5 of the 2003 Regulations (and the adoption scheme generally) is limited to certifying that the British procedures to ensure that a person is eligible and suitable to adopt have been satisfactorily carried out by an authorised statutory body. That role comes to an end when the certificate is issued. The certificate itself evidences the existence of a judgment by a local authority or adoption agency as to the suitability of potential United Kingdom adopters. The statutory purpose of the certificate, as envisaged by Regulation 5 of the 2003 Regulations, is to provide a statement from the DfES that the prospective adopters have been duly assessed, by a relevant statutory authority, as being eligible and suitable people to adopt a child. Accordingly, it should not be withheld or revoked where the correctness of the assessment of suitability and eligibility of the prospective adopter is not in doubt.

Further or alternatively, says Ms Mountfield, even if – as it appears – the Secretary of State relies upon a residual implied (presumably prerogative) power to withhold certificates, she must still act consistently with the purpose of her power, given the statutory context within which it operates. The Secretary of State has no power to withhold such certificates because of concerns about the functionality of adoption regimes overseas. The latter power – to prevent a child who is not genuinely and freely available for adoption from being permitted to enter the United Kingdom for such a purpose – resides elsewhere, namely, with the immigration authorities in operation of the Immigration Rules.

Ms Mountfield is at pains to point out that this is not to say that there are not safeguards to prevent a child who may have been put up for adoption under unsatisfactory circumstances from being brought to the United Kingdom for the purposes of adoption. However, she says, the safeguards are to be exercised on a case by case basis, and by the immigration authorities under the Immigration Rules, and not by DfES under the certification procedure.

What is at issue here is whether the Secretary of State has, or does not have, the power for which she contends, namely to decline to issue a certificate, which the 2003 Regulations (and all explanatory material, including that emanating from the DfES) indicate will be issued in appropriate circumstances. It is, says Ms Mountfield, for the court to determine on the evidence whether the Secretary of State’s conduct, on a true construction of the 2003 Regulations, fell within the purpose of the certification procedure provided for in the Regulations: see R v Secretary of State for Foreign and Commonwealth Affairs ex p World Development Movement Ltd [1995] 1 WLR 386 at p 401.

I have already set out the scheme applicable to adoptions from non-Hague Convention and non-designated countries. Ms Mountfield submits that:

From this construction of the statutory scheme, it can be seen, so Ms Mountfield submits, that the DfES’s function is confined to checking (or “policing”) whether the adoption authorities in the United Kingdom have been properly satisfied that the prospective adopter is suitable. If the Secretary of State is so satisfied then the ostensible discretion to issue a certificate (which, by virtue of regulation 5 of the 2003 Regulations, a prospective adopter requires to prove this fact) is, in reality, an obligation. She refers to Wade & Forsyth Administrative Law (8th edition) at p241:

“Where a local authority ‘may grant permission’ for land to be used as a caravan site, this must in some circumstances mean ‘shall grant permission’, where the context so implies. And where a regulatory power is given for the purpose of policing the fulfilment of prescribed conditions, it is natural to infer a mandatory duty in other cases. These exercises in statutory interpretation are only another facet of the principle that discretion must be exercised on proper legal grounds and in accordance with the policy of the Act … ”

Thus, the statutory function of the Secretary of State in determining whether to issue a certificate is limited to the verification and processing of information about British adopters. There is no statutory power for the DfES to use the grant or withholding of a certificate relating to the adopter for the purpose of determining the functionality of adoption regimes overseas. Once the Secretary of State is satisfied that the relevant adoption agencies have approved the adopter, she is, on the true construction of the 2003 Regulations, required to issue a certificate of that fact under regulation 5. In support of this part of her case Ms Mountfield relies upon Car Owners’ Mutual Insurance Company Limited v Treasurer of the Commonwealth of Australia [1970] AC 527 and more particularly on Laker Airways Ltd v Department of Trade [1977] QB 643.

Ms Mountfield referred me to the draft Children (Contact) and Adoption Bill, Cm 6462, presented to Parliament by the Secretary of State in February 2005, clauses 6-8 of which would, if enacted, indubitably confer on the Secretary of State express statutory power to do what she has purported to do, without such powers, in the present case. As the Introduction puts it,

“The draft Bill provides a statutory framework for the suspension of intercountry adoptions from specified countries where there are public policy concerns about the process of intercountry adoption in that country, such as concerns about child trafficking.”

Ms Mountfield characterises as extraordinary the proposition that, at the heart of this detailed statutory framework identifying the roles of different statutory actors in the international adoption process, there is hidden a residual discretion for the Secretary of State to refuse to grant a certificate notwithstanding that the conditions in Regulation 5(a), for which the certificate is evidence, have been met. She says that the proposition is extraordinary for the following reasons:

Ms Mountfield submits that a power so draconian as to refuse to issue a certificate to an individual where all of the criteria envisaged by statute for its issue are met – still more a power to withdraw one which has been issued, without warning, and without change of circumstances – is not one which can be implied by silence.

Furthermore, she says, whether or not the Secretary of State has any such power, the decision to refuse a certificate nonetheless has consequences on the private rights or legitimate expectations of individuals, and as such is susceptible to judicial review. The context of the Secretary of State’s decision as to whether to exercise a power to issue a certificate is the notification to a foreign government of the view of a properly authorised statutory body as to whether or not the proposed adopter or adopters are suitable. Even if the Secretary of State has some discretion to withhold such a certificate, it would have to be for a reason allied to the suitability or otherwise of the proposed adopter or adopters, not for some extraneous administrative or foreign policy purpose.

By deciding that no certificates would be issued, save in ‘exceptional circumstances’, even to persons whom she had no reason to consider ineligible or unsuitable, the Secretary of State misunderstood her own role. By declining to issue certificates to parents whom she had accepted to be indeed suitable persons to adopt, because of features of the adoption regime in the country of proposed adoption, she usurped functions properly to be carried out by the immigration authorities, and thereby took into account matters irrelevant to her decision whether or not to issue a certificate.

Moreover, says Ms Mountfield, the grid of options prepared for the Minister illustrates the improper purpose for which it was decided to implement the suspension by a decision generally to withhold (or withdraw) certificates to adopt from Cambodia: namely, to avoid successful appeals of determinations under the entry clearance rules. The grid records one option as being “DfES request that all applications for entry clearance be refused”, but recorded as a disadvantage of this approach the risk of successful appeals. Earlier in the grid, it was recorded that this option:

“should prevent all cases from proceeding and therefore addresses concerns, but nature of E[ntry] C[learance] appeals process is likely to mean that applications are delayed rather than stopped.”

This appears to mean, complains Ms Mountfield, that the DfES sought to circumvent, by side-stepping it by taking steps to ensure that this stage in the procedure could never be reached, the individual consideration which would, by the nature of the entry clearance process, be afforded to each case during the entry clearance procedure. If, as it appears, this was indeed the objective, it was, she says, an improper approach. It would appear that the real reason for the use of the ostensible power to withhold certificates was to avoid individual entry clearance decisions, the object of avoiding the entry clearance procedure being to prevent appeals to an Adjudicator, and thence – on a point of law – to the courts, a process which might lead to some successful appeals based on the circumstances of individual children. The immigration appeal process was, instead, replaced by what Ms Mountfield calls the opaque, correspondence-based, ad hoc ‘exceptional circumstances’ procedure, overseen not by officials based in Cambodia trained to make assessments of this kind, but by their colleagues in the DfES, whose historical role has been to certify the product of others’ assessments – a procedure, moreover, which she says does not comply with the common-law requirement of fairness or Article 6. Seeking to by-pass the involvement of entry clearance officers was an improper use of the power (even if such existed) to withhold a certificate from a suitable applicant. If the Secretary of State was unhappy with the actual performance of the entry clearance officers in Bangkok, the solution was to set up a proper system of enquiry into individual applications for entry clearance in Phnom Penh and designate that post as that to which all applications would have to be made.

For all these reasons, Ms Mountfield submits that the Secretary of State:

Mr Sales’s response to Ms Mountfield proceeds as follows. The Secretary of State’s act in this process is the issue of the certificate. It is common ground that the Secretary of State had at least a power to issue such a certificate. The substantive issue is whether the Secretary of State had a discretion to decline to issue a certificate, or whether she was in effect under a duty to issue a certificate in all circumstances. Mr Sales contends that the Secretary of State had at least a discretion to decline to issue a certificate in what he says are the extraordinary circumstances which have led to her taking the action she has. He points out, correctly, that the statutory provisions do not provide for any duty to issue a certificate in all circumstances. On the contrary, he submits, they support the Secretary of State’s submission that she has a discretion as to whether or not to issue a certificate. As Mr Sales points out, neither the 1976 Act nor the 2003 Regulations prescribes the issue of such a certificate by the Secretary of State. Section 56A does not require such a certificate, nor does it provide for such a certificate to be issued. Indeed, the description of the Secretary of State’s certificate in Regulation 5(a) is the only place in the statutory framework in which such a certificate is even mentioned, but even so, the 2003 Regulations do not require that such a certificate be issued; they simply contemplate that a certificate may be issued. The prescribed condition in the 2003 Regulations which must be satisfied before the child is brought into the United Kingdom is not the issue of such a certificate, but the notification by the Secretary of State to the prospective adopters that she has issued such a certificate. The certificate is described, not prescribed.

Accordingly, Mr Sales submits, on proper analysis, a certificate is in each case where one is issued an extra-statutory certificate issued by the Secretary of State under the Crown’s common law/prerogative powers whose possible existence is recognised by statutory provisions. On this analysis, he says, there can be no serious question but that the Secretary of State has a discretion whether to exercise the Crown’s common law/prerogative power to issue such a certificate. And there is nothing in the language used in the 1976 Act or the 2003 Regulations which imposes any obligation to issue such a certificate or is in any way inconsistent with the continued existence of the discretionary common law/prerogative power which is, in fact, the relevant legal basis for the issue of any such certificate.

Mr Sales submits that this analysis is further supported by a consideration of the nature of the certificate itself. The certificate is a communication between sovereign states, being issued by Her Majesty’s Government to the government of the foreign state concerned. This point is underlined by the mechanism by which the certificate is communicated to Cambodia, namely from the British Embassy in Phnom Penh to the Cambodian Ministry of Foreign Affairs. Nor, he says, is this simply a formal point. The claimants’ argument is that so long as the domestic adoption agency has found the prospective adopters to be suitable, and the Secretary of State is satisfied that the adoption agency’s assessment has been properly arrived at, the Secretary of State is then under a duty to issue a certificate to the government of the foreign state without any element of discretion or any possibility of exceptions. But, he submits, it would be absurd to suggest that there is a mandatory duty requiring the Secretary of State to issue such a certificate in all cases and whatever the circumstances might be relating to government policy in the United Kingdom, or the policy of or conditions on the ground in the foreign state, or the current nature of the relations between the United Kingdom and that state (for example, to suggest that there is a duty to issue a certificate to a state with which the United Kingdom may have broken off or not have established diplomatic relations, or with which the United Kingdom may even be in a state of armed conflict). If the Secretary of State may decline to issue such a certificate to a state in those circumstances (as, he says, she clearly may), it is on the basis that she has a discretion to do so. Moreover, he submits, that discretion clearly also extends to permit the Secretary of State to decline to issue such a certificate in circumstances in which the state concerned is the locus of what he calls rampant baby trafficking, fraud and corruption directly affecting the probity and integrity of the adoption process.

Mr Sales reiterates that this analysis of the nature of the certificate is supported not only by such practical considerations, but also by the structure of the 2003 Regulations which, to repeat, describe but do not prescribe the certificate. This, he says, is a proper reflection of the nature of the certificate as an inter-governmental communication. The conduct of the United Kingdom’s foreign relations is an area in which the courts will tread lightly, if at all: see R v Secretary of State for Foreign and Commonwealth Affairs ex p Everett [1989] 1 QB 811 and R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76. He submits that the presumption appearing from these authorities, that the conduct of international relations is a matter for the executive (which is best equipped for the task), and not the courts, indicates that very strong and clear language would be required in legislation before a duty to conduct international relations in a particular way could be established and before the conclusion could be drawn that the legislation was intended to remove the Crown’s ordinary discretionary powers. As a matter of general principle, he says, the courts will not require the government of the United Kingdom to make any communication to a foreign government, nor to make any such communication in any particular form. It is consistent with this basic constitutional division of responsibilities (and no surprise) that there is no provision in the legislation imposing a duty for a certificate to be issued, let alone imposing such a duty in the clear and specific terms which would be required in legislation which was intended to remove from the executive all discretion as to how it should conduct this country’s international relations.

In fine, therefore, says Mr Sales there is nothing in the statutory provisions from which any duty to issue such a certificate in all circumstances can be derived. Consequently, the Secretary of State clearly retains the Crown’s ordinary discretion whether to issue a certificate.

This conclusion is further reinforced, according to Mr Sales, by a consideration of the purpose of the statutory provisions. Within the United Kingdom’s arrangements for the management of intercountry adoptions, it is the Secretary of State who has the overall responsibility for the safeguarding of the public interest. However, the claimants argue that the Secretary of State’s function is limited to checking whether the adoption agency has carried out its assessment properly and that the outcome of the assessment is favourable. The effect of the claimants’ argument would be that, even with the clearest possible evidence of systemic abuse in the foreign country, the Secretary of State would nevertheless have no power to act on her own account and to safeguard the public interest (in all its ramifications) in such circumstances. As he points out, this argument would reduce the Secretary of State’s role to that of being little more than a postbox between United Kingdom adoption agencies and Cambodian government departments. Such a conclusion would, he says, be inconsistent with the Secretary of State’s overall responsibility within the statutory scheme, a responsibility which indicates, he says, that it has never been the intention of the 1976 Act or the 2003 Regulations to remove the Secretary of State’s discretion to decline, in appropriate circumstances, to issue a certificate.

Moreover, as Mr Sales points out, even on the basis of the claimants’ argument, the Secretary of State must presumably have at least a discretion to decline to issue a certificate if, for example, the Secretary of State considers that the adoption agency has not properly carried out its assessment. If so, the real argument in this case does not concern whether the Secretary of State has such a discretion, but the circumstances in which the Secretary of State may properly exercise such a discretion.

Mr Sales disputes the claimants’ argument that it is for the immigration authorities to consider whether there has been any abuse within the foreign system and that it is up to them, and not the Secretary of State, to refuse entry clearance if that is so. Their argument that this shows that the Secretary of State has no discretion of her own to refuse to issue a certificate ignores, he says, the division of responsibilities within the United Kingdom’s arrangements for the management of intercountry adoptions. As he points out, it is plainly no part of the role of adoption agencies in the United Kingdom to monitor the question of whether intercountry adoptions should take place from a particular country. Their expertise and role are in the assessment of the suitability of prospective adopters. Nor do the immigration authorities have any role in setting or enforcing policy decisions in relation to intercountry adoptions. Their role is to consider, on a case-by-case basis, and at the time prescribed by the Immigration Rules, whether the child qualifies for United Kingdom entry clearance, whether on the basis of the Immigration Rules or otherwise.

There are, in any event, he says, practical difficulties in relying on immigration control for the prevention of abuse in relation to the implementation of intercountry adoption arrangements. The immigration authorities’ involvement in the United Kingdom’s process occurs too late to be of much use in countering abuse which may be occurring in the foreign country. The immigration system is intended to play a role only after the foreign adoption has been completed. As he points out, paragraph 316A(vi) of the Immigration Rules requires there to have been a genuine transfer of parental responsibility to the prospective parent or parents, which will not occur until that stage. Under the Immigration Rules, the United Kingdom’s immigration authorities cannot make a decision about entry clearance until after the child has been adopted under Cambodian law, otherwise they would be bound to refuse entry clearance. Whatever enquiries are made into a child’s background before that time and whatever their result, neither the Secretary of State nor the immigration authorities have any power to prevent prospective adopters from pursuing the Cambodian adoption process after the Secretary of State has issued a certificate to MoSALVY, nor any power to prevent an application for entry clearance being made to the immigration authorities in respect of a child who by that stage will already have been adopted under Cambodian law. Thus, he says, by the time any entry clearance application came to be considered under the Immigration Rules, any wrongdoing within Cambodia would already have produced the undesired result, namely an adoption under Cambodian law. Operation of the entry clearance system in an attempt to block the child’s travel to the United Kingdom cannot prevent trafficked children from being adopted by British residents; in the eyes of Cambodian law that would already have happened. The foreign adoption would not merely be a putative or conditional adoption. Moreover, refusal of United Kingdom entry clearance at this point could also leave the child in a highly unsatisfactory state of legal limbo, regarded by Cambodia as having been adopted by British resident parents but unable to travel to the United Kingdom, and possibly physically stranded in Thailand if the parents have taken the child there for the purpose of applying for entry clearance. Any legal uncertainty would be increased if an appeal were brought, particularly if the appeal was based on any grounds additional to the provisions of the Immigration Rules. And if the appeal were to fail under the Immigration Rules because of established wrongdoing in Cambodia, but was to succeed on other grounds despite that wrongdoing, the entire system would have failed to prevent the abuse of the Cambodian system exemplified by the case in question.

The entry clearance system, says Mr Sales, is therefore not apt for the task which the claimants suggest it should perform, namely preventing the adoption of trafficked children.

Therefore, says Mr Sales, the claimants’ argument would have the effect that, even with the clearest possible evidence of systemic abuse in the foreign country, no United Kingdom authority would have any power to inhibit in any way the procurement by British residents of adoptions in the foreign country, but would only be able to act after the child had already been adopted under the law of the foreign country. In the light of the clear intention of Parliament that the actions of British residents should be regulated by British authorities, this, he says, would be an absurd consequence, and the court should reject the argument that leads to it.

Moreover, he submits, and quite apart from the detail of the claimants’ arguments in relation to the possibility of the immigration authorities taking action against abuse, those arguments do not begin to answer the more fundamental submissions of the Secretary of State. There is, he says, no basis to proceed from consideration of the immigration position to the conclusion that the ordinary powers of the Crown to decide whether or not to issue a certificate addressed to a foreign state have been converted into an obligation to do so.

Mr Sales disputes the claimants’ contention that published materials and past practice support their argument that the Secretary of State is under a duty, admitting of no exceptions, to issue the certificate. He submits that the action taken by the Secretary of State is directed to addressing an unprecedented situation and makes the important point that the evaluation has not previously been made that any other country’s systemic problems have called for such action to be taken. The Secretary of State’s role in the process, as he emphasises, is one of overall safeguarding of the integrity of the adoption process, in the interests of the public (including all those affected by the process), and is not normally one of individual case by case consideration. Thus, the fact that the discretion has not been exercised before does not indicate that the Secretary of State has proceeded in the past on the basis that there was a duty such as that contended for. And as he also points out, there has never been any statement made to that effect, or indicating that the Secretary of State intended to abandon the Crown’s usual discretionary powers in this regard.

The draft Children (Contact) and Adoption Bill provides, he says, no assistance to the court on the question whether the power contended for exists. This judicial review application has put in doubt the existence of the power. As it happens, an appropriate opportunity has arisen to invite Parliament to consider making more explicit provision to prevent the same argument arising again in the future and to put the matter of any future exercise of this power beyond doubt.

Turning therefore to what he says is the real question, namely the circumstances in which the Secretary of State may properly exercise her discretion, Mr Sales seeks to refute any suggestion that the Secretary of State has exercised her powers for an improper purpose. Reiterating his earlier submissions that the entry clearance process cannot effectively prevent any wrongdoing within Cambodia from proceeding to the point of adoption under Cambodian law, that if entry clearance were used as the point of control, the child could be in a state of legal uncertainty or limbo, possibly stranded in a third country, and that the immigration appeals system might produce a result which in fact condones the effect of established wrongdoing, Mr Sales submits that the choice of the suspension point (namely issue of the certificate rather than entry clearance) was not an attempt to circumvent individual consideration of cases or the immigration appeals system. Rather, it was a rational and appropriate cut-off point to choose, given the nature of the process in an intercountry adoption, the successive stages in that process and, most importantly of all, that if individual consideration were given in the United Kingdom’s system at the point of entry clearance, it would not be effective to secure the legitimate objective of the suspension.

Although counselling caution in reviewing the exercise of prerogative powers, particularly in the context of the United Kingdom’s relations with foreign states, Mr Sales did not, of course, nor could he, assert that the power being exercised here by the Secretary of State is non-justiciable merely because what is involved is an exercise of the royal prerogative and, moreover, an exercise of the royal prerogative involving this country’s relations with a foreign state. Ms Mountfield referred me to R v Secretary of State for Foreign and Commonwealth Affairs ex p Everett [1989] QB 811 and in particular to the judgment of Taylor LJ at p 820:

“The House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 made it clear that the powers of the court cannot be ousted merely by invoking the word “prerogative.” The majority of their Lordships indicated that whether judicial review of the exercise of prerogative power is open depends upon the subject matter and in particular upon whether it is justiciable. At the top of the scale of executive functions under the prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making war, dissolving Parliament, mobilising the Armed Forces. Clearly those matters, and no doubt a number of others, are not justiciable. But the grant or refusal of a passport is in a quite different category. It is a matter of administrative decision, affecting the rights of individuals and their freedom of travel. It raises issues which are just as justiciable as, for example, the issues arising in immigration cases. Mr ter Haar sought to put the grant of passports under the umbrella of foreign affairs and thereby elevate it to that level of high policy which would preclude the intervention of the courts. He says that the grant of a passport involves a request in the name of the Queen to a foreign power to afford the holder free passage and protection. It also extends the protection and assistance of the Crown to the holder whilst he is abroad.

However, those considerations do not, to my mind, render issues arising on the refusal of a passport non-justiciable. The ready issue of a passport is a normal expectation of every citizen, unless there is good reason for making him an exception. The issues arising are no more likely to have foreign policy repercussions than those arising, to take the same analogy as before, in immigration cases.”

It is equally clear that the courts can consider the legality of the exercise of discretionary powers under the prerogative. As Lord Denning MR said in Laker Airways Ltd v Department of Trade [1977] QB 643 at p 705:

“Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive. At several times in our history, the executive have claimed that a discretion given by the prerogative is unfettered: just as they have claimed that a discretion given by statute or by regulation is unfettered. On some occasions the judges have upheld these claims of the executive … but the judges have not done so of late … [T]he House of Lords have shown that when discretionary powers are entrusted to the executive by statute, the courts can examine the exercise of those powers to see that they are used properly, and not improperly or mistakenly. By “mistakenly” I mean under the influence of a misdirection in fact or in law. Likewise it seems to me that when discretionary powers are entrusted to the executive by the prerogative – in pursuance of the treaty-making power – the courts can examine the exercise of them so as to see that they are not used improperly or mistakenly.”

In my judgment it is absolutely clear that, however one classifies the nature of her functions, the Secretary of State does retain a discretion as to whether or not to issue a certificate. Mr Sales has demonstrated a formidable list of reasons why that must be so. I agree with his analysis. At the end of the day, with all respect to her arguments, Ms Mountfield simply had no answer to Mr Sales’s submissions on the point. The true question, as Mr Sales correctly identified, is as to the ambit of the discretion vested in the Secretary of State and, more specifically, as to whether she was entitled to exercise her discretion in the manner she did.

Although the origin of the Secretary of State’s functions is to be found, as Mr Sales submitted, in the Crown’s common law or prerogative powers, this does not mean that the Secretary of State merely has a power or, putting the point rather differently, that she is never under any duty to exercise her powers, either at all or in any particular way. Nor, I emphasise, does it mean that she has a completely general and unfettered discretion. On the true analysis of the statutory scheme, of which the Secretary of State’s function is a part but only a part, her powers are coupled with duties: a duty to consider whether or not to issue a certificate and, it may well be, a duty to issue a certificate in any case where the relevant adoption agency has approved a prospective adopter unless there are good reasons for declining to do so. And her discretion has to be exercised in a manner consistent both with the overall statutory scheme and with her own particular role in it.

I do not consider it necessary to embark upon any general consideration of the extent to which the Secretary of State may be under a duty as well as having a power to act. Nor is there any need for me to embark upon a general consideration of the manner in which the Secretary of State can or cannot exercise her discretion. These are not matters which it is necessary for me to decide in order to determine the narrower question of whether she was entitled in this particular case to exercise her discretion as she did. They are not matters which were canvassed in any great detail in argument before me. And they are, as it seems to me, matters much better left to be dealt with on a case by case basis as the need arises.

The question then reduces itself to this: Was the Secretary of State entitled to exercise the discretion, which in my judgment she undoubtedly had, in the manner in which she chose to and in what were, as I should like to emphasise, quite unprecedented and exceedingly concerning circumstances?

I unhesitatingly reject the suggestion that the Secretary of State was exercising her discretion for the improper purpose of circumventing the system of immigration control or with a view to denying people in the claimants’ position access to the immigration appeal system. The argument is based on a misreading of the grid put before the Minister and a misunderstanding of its function, and it ignores the evidence filed on behalf of the Secretary of State. The grid was, as it seems to me, intended to be a near exhaustive analysis of every possible solution. The mere fact that one of the hypothetical solutions identified was the one fastened upon by Ms Mountfield tells us nothing about the reasons why the Secretary of State chose the solution she did. On the contrary, the evidence filed on her behalf, which there is no reason to reject, shows that the basis for her decision was not what Ms Mountfield suggests. It was, as a matter of fact, founded on the Secretary of State’s perception that the cut-off point she selected was the most appropriate one given, as Mr Sales puts it, the nature of the process in an intercountry adoption, the successive stages in that process and, most importantly of all, that if individual consideration were given in the United Kingdom’s system at the point of entry clearance, it would not be effective to secure the legitimate objective of the suspension.

The question then becomes whether it was open to the Secretary of State to exercise her discretion in the way she did and for the reasons she gave. In my judgment there can be only one answer to that question. It was. I am not of course disputing that there might have been other options which the Secretary of State could lawfully have selected. But the question for me is a narrower one. Can the claimants demonstrate some ground of challenge – whether based on common law public law principles or based on the Convention – to the decision which the Secretary of State made? In my judgment they cannot. The Secretary of State’s decision was consistent with the proper exercise of her powers in the context of the statutory scheme as a whole; it comfortably meets the common law test of rationality; and it equally meets the Convention test of proportionality. I agree that, for all the reasons explained in the evidence filed on behalf of the Secretary of State and elaborated by Mr Sales in his submissions, the cut-off point chosen by the Secretary of State was lawful.

Neither Car Owners’ Mutual Insurance Company Limited v Treasurer of the Commonwealth of Australia [1970] AC 527 nor Laker Airways Ltd v Department of Trade [1977] QB 643 ultimately assists Ms Mountfield. I accept, of course, as I have already said, that the exercise of the Secretary of State’s discretion is justiciable, and is susceptible to judicial review, notwithstanding that it arises under the prerogative. Indeed, Laker Airways Ltd v Department of Trade [1977] QB 643 is a striking statement and application of that very principle. But, at the end of the day, all these cases turn on the construction of the particular statutory scheme and on a consideration, within the statutory context, of the true ambit of the relevant prerogative power.

I do not propose – in my judgment there is no need – to subject either of these cases to minute analysis. The correct approach appears clearly enough from some illuminating passages in the judgments in Laker Airways Ltd v Department of Trade [1977] QB 643. I go first to what Mocatta J said at p 678:

“it would seem a singularly fruitless, uneconomic and time-consuming procedure to allow fairly elaborate public hearings to take place with legal representation and subsequent comparable hearings consequent upon attempts to revoke licences previously given, if a designation made subsequently to the granting of an appropriate long-haul licence were to be terminable by the exercise of the prerogative, notwithstanding that the licence was still extant and the powers expressly granted to the Crown under section 4 (3) had not been used. Why should they have been expressly provided for if very much the same field could be covered by the exercise of the prerogative? … Although this issue is not free from difficulty, I have reached the conclusion that the machinery for licensing air services from the United Kingdom to a foreign country by the Civil Aviation Authority under the provisions of the Civil Aviation Act 1971 did fetter or restrict the prerogative in relation to what may be described as a very minor aspect of the treaty-making power”.

Mocatta J’s decision was upheld by the Court of Appeal. Lord Denning MR at p 706 said this:

“Seeing then that those statutory means were available for stopping Skytrain if there was a proper case for it, the question is whether the Secretary of State can stop it by other means. Can he do it by withdrawing the designation? Can he do indirectly that which he cannot do directly? Can he displace the statute by invoking a prerogative? If he could do this, it would mean that, by a side wind, Laker Airways Ltd would be deprived of the protection which the statute affords them. There would be no inquiry, no hearing, no safeguard against injustice. The Secretary of State could do it of his own head – by withdrawing the designation without a word to anyone. To my mind such a procedure was never contemplated by the statute.”

Roskill LJ put the point very clearly at pp 721-722:

“When one looks at the Act of 1971 and its elaborate code in relation to licensing and the other matters entrusted to the Authority, can it be said that where the Authority, in pursuance of statutory powers expressly granted by Parliament, has granted to the plaintiffs a valuable commercial asset in the form of an air transport licence to operate a service from Stansted to New York (a licence which the Authority can be directed by the Secretary of State to revoke in circumstances falling within section 4 of the Act but not otherwise, and certainly not, as we have held, by the giving of the guidance already considered) a licence granted after a full and careful hearing before the Authority in the express expectation of the obtaining of reciprocal rights from the United States Government under the Bermuda Agreement, a prerogative power nevertheless survives in the Crown to nullify that licence by withdrawing the plaintiffs’ designation under the Bermuda Agreement with its attendant advantages, the securing of which was one of the avowed purposes of the Authority when it granted the plaintiffs that licence? …. Is it to be said that notwithstanding the absence of any express reference in the Act to the Bermuda Agreement as such or to designation or to withdrawal of designation as such, Parliament nevertheless, having established this elaborate licensing code which section 4 permits to be overridden by direction in the circumstances there specified, also intended to leave vested in the Crown, which means the Secretary of State, an unfettered prerogative power to destroy, uncontrolled by the courts, the commercial value of that right to fly, a right which it cannot lawfully destroy under the municipal law of this country by giving the guidance in question to the Authority under section 3 and has not sought to destroy and perhaps cannot destroy by giving a direction under section 4? In short, I do not think that the Attorney-General’s argument that the prerogative power and the power under the municipal law can march side by side, each operating in its own field, is right. The two powers are inextricably interwoven. Where a right to fly is granted by the Authority under the statute by the grant of an air transport licence which has not been lawfully revoked and cannot be lawfully revoked in the manner thus far contemplated by the Secretary of State, I do not see why we should hold that Parliament in 1971 must be taken to have intended that a prerogative power to achieve what is in effect the same result as lawful revocation would achieve, should have survived the passing of the statute unfettered so as to enable the Crown to achieve by what I have called the back door that which cannot lawfully be achieved by entry through the front. I think Parliament must be taken to have intended to fetter the prerogative of the Crown in this relevant respect.”

Lawton LJ said much the same at p 728:

“the Secretary of State cannot use the Crown's powers in this sphere in such a way as to take away the rights of citizens: see Walker v Baird [1892] AC 491. By withdrawing designation this is what in reality, if not in form, he is doing. A licence to operate a scheduled route is useless without designation. In my judgment the Act of 1971 was intended by Parliament to govern the rights and duties of British citizens in all aspects of civil aviation and to indicate what the Secretary of State could and should do … The Act made provision for revocation by the Authority under section 23 and by the Secretary or State under section 4. These provisions regulate all aspects of the revocation of licences. By necessary implication, the Act, in my judgment, should be construed so as to prevent the Secretary of State from rendering licences useless by the withdrawal of designation when he could not procure the Authority to revoke them nor lawfully do so himself.”

The decision in Car Owners’ Mutual Insurance Company Limited v Treasurer of the Commonwealth of Australia [1970] AC 527 proceeded along much the same lines.

The differences between the Laker Airways case and the present case are apparent. The very features of the statutory scheme which in the Laker Airways case denied the Secretary of State the power which he had purported to exercise are conspicuously absent from the scheme contained in the 1976 Act and the 2003 Regulations. In that case the Secretary of State, who had express powers to do what he chose to try and do by means of the prerogative, failed because he was thereby seeking to achieve his objective, as Lord Denning MR put it, by a side wind or, as Roskill LJ put it, trying by the back door to achieve what could not lawfully be achieved by entry through the front. That is not the case here. In the Laker Airways case the Secretary of State’s functions were, in part, regulated by the statute; here they are not.

In my judgment, and for all these reasons, the challenges under grounds 1 and 2 both fail.

It is convenient to take ground 3 together with ground 4.

In relation to the eleventh and twelfth claimants there is the further argument that the Secretary of State had no power to revoke or withdraw a certificate which had already been granted (ground 3). Further or alternatively, given the purpose of the certifying power, it was, says Ms Mountfield, irrational to purport to revoke, withdraw or annul, such a certificate where there had been no change of circumstances, and the certificate had not been granted on the basis of any mistake as to their circumstances (ground 4).

What Ms Mountfield calls the logic of the Secretary of State’s approach – that she has a free-standing, and open-ended discretion to grant, withhold or revoke a certificate at will – is, she says, illustrated by the facts of the eleventh and twelfth claimants’ case. They had a certificate which was issued on 15 March 2004, were notified that it had been transmitted to the Cambodian authorities on 14 April 2004, but told that it had been revoked on 22nd June 2004. If the Secretary of State is right, it would indeed have been lawful for her to have revoked a certificate at any time before the child was removed from Cambodia, or even subsequently, exposing the parents on their arrival in the United Kingdom to prosecution for an offence.

The circumstances of this particular case, according to Ms Mountfield, demonstrate the vice of the Secretary of State’s approach at its most extreme. The certificate was revoked without warning, with no change in their circumstances, where there had been no mistake in the circumstances in which it had been granted, and for extraneous reasons. The Secretary of State, she says, had no power to revoke a certificate once it had been granted, and had – on the statutory criteria – been properly granted: see Congreve v Home Office [1976] QB 629. It was irrational to purport to revoke (or withdraw, or withhold) this certificate as to the suitability of the eleventh and twelfth claimants as prospective adopters by reference to matters irrelevant to their suitability, but which were properly matters for the entry clearance officer in determining whether to permit entry to the United Kingdom for the purpose of adoption.

As I have said, the Secretary of State had in fact issued a certificate in relation to the eleventh and twelfth claimants. It had been sent via diplomatic channels to MoSALVY. A request was then made by the United Kingdom to MoSALVY for the return of the certificate. Mr Sales submits that, quite plainly, the United Kingdom may withdraw a communication to a foreign state if the foreign state has not acted on it.

In my judgment the answer to the questions posed in relation to grounds 3 and 4 flows naturally from my conclusions in relation to grounds 1 and 2. Given the nature of the discretion vested in the Secretary of State, and the purposes for which that discretion can legitimately be exercised, there can be no absolute prohibition on the Secretary of State revoking or withdrawing a certificate that has already been issued, any more than there can be an absolute prohibition on the Secretary of State refusing to issue a certificate in the first place. The question, as in relation to the complaint under ground 2, is whether it was open to the Secretary of State to exercise her discretion in relation to the eleventh and twelfth claimants in the way she did and for the reasons she gave. The only material difference between their case and the cases of at least some of the other couples is that in their case a certificate had actually been issued whilst in the others it had not. In the circumstances which the Secretary of State faced on 22 June 2004 she was, in my judgment, as entitled to revoke or withdraw a certificate which although issued had not been acted upon by the Cambodian authorities as she was to refuse to issue a certificate. As Mr Sales submits, and I agree, the United Kingdom can plainly withdraw a communication to a foreign state which the foreign state has not acted upon. Nor, in that situation, had anything happened to deny the Secretary of State power to do so as a matter of domestic law vis-à-vis disappointed prospective adopters.

I prefer to proceed on that narrow front and not to explore – there is no need for me to do so – what the consequence might be if the Secretary of State sought to withdraw or revoke a certificate after it had been acted upon. Very different questions might then arise. In particular I should not want to be thought to be accepting that the Secretary of State could necessarily withdraw or revoke a certificate – or, to be more accurate, withdraw a notification issued to prospective adopters under regulation 5(a) of the 2003 Regulations – after a Cambodian adoption had actually gone through, let alone as the parents were just about to enter the United Kingdom with an adopted child. So the consequences Ms Mountfield seeks to conjure up are not the necessary result of my decision today. They are, however, matters for another day. They do not arise in this case. So I say no more about them.

Congreve v Home Office [1976] QB 629 does not, in my judgment, assist Ms Mountfield at all. It was a very different case, turning on an application in most unusual circumstances of the principle that the subject cannot be taxed without clear Parliamentary sanction. So it was an abuse of the Minister’s undoubted discretionary power to revoke TV licences for him to seek to revoke a validly issued licence as a means of levying money which Parliament had given the executive no power to demand. As Geoffrey Lane LJ said at p 662:

“the proposed revocation … is illegal for two reasons. First, it is coupled with an illegal demand which taints the revocation and makes that illegal too. Secondly, or possibly putting the same matter in a different way, it is an improper exercise of a discretionary power to use a threat to exercise that power as a means of extracting money which Parliament has given the executive no mandate to demand: see Attorney-General v Wilts United Dairies Ltd (1921) 37 TLR 884.”

In my judgment the complaints under these grounds of challenge likewise fail.

The decision to suspend all adoptions from Cambodia, with immediate effect, was taken, as we have seen, without consultation or warning. A small number of potential adopters (approximately 23 couples), who according to Ms Mountfield were midway through the lengthy, stressful, and costly process of seeking approval to adopt from Cambodia, and who had either completed the process of being approved by the relevant authorities or were about to do so, suddenly found themselves blocked from proceeding to be considered for a match with a suitable child in Cambodia.

The claimants assert that the refusal to issue certificates to these ‘pipeline’ cases breached the legitimate expectation of those prospective adopters, which had been induced both by statements publicly issued by the DfES and by statements from DfES officials, that their applications – having been commenced before the announcement of the suspension, being at an advanced stage at the date of the announcement, and the underlying conditions for certification having been met in each case – would continue to be processed in the normal way.

These expectations were, so it is said, induced primarily by the guidance issued by the DoH, and by the website notices, factsheets and other materials issued by the DfES. In the case of the eleventh and twelfth claimants it is said that they were induced also by the explanation of the process which would be pursued contained in the letter dated 14 April 2004 notifying them that the certificate had been issued. It is further asserted that the claimants’ expectations that they would be processed through the “normal operation of the system” were buttressed by certain statements made by Mr Cogle subsequent to his visit to Cambodia.

Between the dates of Mr Cogle’s visit to Cambodia and the announcement of the temporary suspension on 22nd June 2004, the claimants say they believed that their applications, as ‘ongoing’ cases in which approval for adoption had been granted by the relevant adoption bodies, would continue to be processed in the normal way. This was, as Mr Cogle has conceded, the “line to take” which he and his staff gave to anyone who enquired. Two prospective adoptive parents – the first claimant (who is no longer pursuing the proceedings) and a Mr Purser (who is not one of the claimants) – understood Mr Cogle to have told them in terms that any action taken would not have an impact on those already approved for adoption and that cases already in the process (which were those about which individual enquiries were being made) “would be processed in the normal way”. The DfES’s published policy and website buttressed this belief. On the basis of the then policy and these assurances, some of the claimants travelled to Cambodia to further acquaint themselves with the country and visit orphanages. At no time, despite frequent contact between the claimants and DfES officials, was any indication given to any claimant that their case would be affected by Mr Cogle’s visit, or report, or by any subsequent changes to policy or practice which might result from the report. The announcement of the temporary suspension on 22 June 2004 came, they say, as a terrible shock to the claimants.

Ms Mountfield submits that, given the lack of nuance or qualification to these statements, and the small group of people to whom they were made, each of whom was investing very considerable time, money and emotional energy in applications to be approved to adopt children from Cambodia, these statements were enough to ground a legitimate expectation that these cases would be processed through the procedure which was current at the time at which they had been initiated. It was, she says, substantively unfair to decide for extraneous reasons that certificates would not be issued to those who had invested so heavily in establishing their suitability to adopt.

It is important to understand the ambit of this ground of complaint. It is not claimed that there was a legitimate expectation that these prospective adopters could successfully adopt from Cambodia. As Mr Sales put it, the claimants have to accept that the outcome of any adoption application can never be guaranteed, nor will there ever be any assurance that any prospective adopters will be matched with a child whom they would be prepared to adopt. What is asserted by Ms Mountfield is a legitimate expectation that the ‘normal’ published procedures for processing an intercountry adoption from a non-Hague Convention, non-“designated list” country would be applied in these cases. In other words, whilst the entry clearance rules might be applied with particular care and rigour, the normal exercise of the statutory adoption process could not be changed, by exercise of residual discretion, half-way through, without proper warning or adequate countervailing public interest. In effect, as Mr Sales put it, the asserted legitimate expectation was not that the claimants would be able to adopt a child but that, subject to being able to produce satisfactory reports to the Secretary of State, they would be given certificates.

Mr Sales has three lines of defence.

First, and fundamentally, he submits that on a fair and proper reading, none of the published materials makes any statement that cases at any particular stage of the process would be permitted to continue even if any suspension were to be imposed. The published materials described the process. They did not give any assurances that the process would proceed to completion for any particular individual, or from any particular point; they merely set out the process. The statements were made to the world at large, not only to the claimants or to individuals who were similarly part way through the process. They were made equally to individuals who may have been in the most preliminary stages of enquiry about adoptions from Cambodia. No legitimate expectation can have been derived from these statements: there were no clear or unequivocal statements that there would be no suspension or that any suspension would not apply to individuals such as the claimants, and any statements made were published to the widest class of recipients, namely the world at large. The claimants, says Mr Sales, therefore cannot make out even the most basic requirements for establishing that there was a substantive legitimate expectation of particular treatment in their respective cases. Insofar as their case is founded on what Mr Cogle is alleged to have said to the first claimant and to Mr Purser, Mr Sales disputes that the claimants can rely upon promises (if they were such) made to third parties. In any event, there is, as he points out, a factual dispute as to exactly what Mr Cogle said, a dispute which I am in no position to resolve.

Secondly, Mr Sales submits that none of the claimants have relied to their detriment on any of the statements made by the Secretary of State. There is, he says, no evidence that any of them would have ceased to pursue an adoption from Cambodia or changed their nominated country at the time of any of the particular statements referred to if they had not been made. In the absence of detrimental reliance, the claimants cannot, he says, claim to have a legally-enforceable substantive legitimate expectation that they would be permitted to proceed with their adoptions even in the event of a general suspension.

Thirdly, and alternatively, Mr Sales submits that if (contrary to his previous submissions) any legitimate expectation could be derived from these statements, any disappointment of any such expectation was lawful by virtue of the pressing public interest that justified the introduction of the suspension. Further, he points out, as a matter of practicality any suspension would inevitably exclude some prospective adopters who had already begun to take some steps, formal or informal, towards adopting a child from Cambodia. Some prospective adopters would be bound to be disappointed, whatever point in the process was chosen. The disappointment to such prospective adopters had to be balanced against the interests being sought to be protected, foremost being those of the children (and their families) who might be the victims of abuses of the Cambodian adoption system. The point of suspension chosen by the Secretary of State was a rational and appropriate (indeed, he says, the most appropriate) point: it was the point at which control of the process passed, in effect, to the Cambodian authorities. The next formal step in the process after the point chosen by the Secretary of State would have been the issue of a matching report by the Cambodian authorities, but even for those claimants whose applications had advanced the furthest in the process, no such reports were imminent. Moreover, no further steps in the process would have involved United Kingdom authorities until after the issue of an adoption certificate by the Cambodian authorities and the handover of the child to the prospective adopters (ie, after stages in the process at the Cambodian end likely to be affected by the systemic abusive practices assessed to be occurring in Cambodia). The next step in the process involving United Kingdom authorities would be the application by the prospective adopters to the immigration authorities for entry clearance for the child. Any later point than that chosen by the Secretary of State would have been unacceptable for these reasons.

Finally, and in any event, Mr Sales submits, it was lawful for the Secretary of State to act as she did, whether or not any legitimate expectations would be overridden, in the light of:

Ms Mountfield seeks to meet each of these arguments. She disputes that the statements upon which she relies “plainly” dealt with the normal operation of the system in which no suspension was being imposed. She submits that the latest such public statement, in March 2004, was issued by the DfES precisely in order to ensure that concerns about Cambodia generally were known; and the statement to the eleventh and twelfth claimants was made when, on the Secretary of State’s own case, suspension was under active consideration. She disputes that detrimental reliance is an essential ingredient of a claim based on legitimate expectation. She submits that the Secretary of State’s argument, that any such expectation would in any event be defeated by overriding public interest considerations, is not made out upon proper consideration of the history of the matter and given the alternative safeguards which could have been put in place for what she calls this small number of transitional cases.

She accepts that although a legitimate expectation can, in certain circumstances, be overridden where the court considers that there is some overriding contrary interest, no such overriding interest existed in the present case. The claimants, as she points out, do not deny – indeed they positively assert – the need to ensure that intercountry adoptions are ethical and avoid child trafficking and the like. However, she submits that to apply the suspension to the 23 outstanding applications for adoption from the United Kingdom was not a necessary or proportionate way of addressing this issue, given what she asserts were (a) the small number of cases, (b) the undisputed existence of some children in particular orphanages who were available for adoption, and (c) the existence of satisfactory means for determining whether, in that small number of cases, a child’s origins and genuine loss of bond with their parents could be verified in an independent and satisfactory manner. It would not, she says, have been impracticable to make adequate enquiries in the small number of cases in question – the United States Immigration and Nationality Service did precisely this in relation to its “pipeline cases” – and no evidence has been adduced as to the extent of the resources which might have been needed for satisfactory entry clearance checks to have been undertaken. Nor, she says, could allowing existing cases to pass through the system conceivably encourage future trafficking of children.

In my judgment the challenge based on an alleged legitimate expectation falls at the very first hurdle. For the reasons identified by Mr Sales, none of the statements relied on by the claimants amounted to a promise or commitment by the Secretary of State that pending cases would continue to be processed in accordance with the published procedures. The crucial word “will” upon which Ms Mountfield places such reliance was not a promise; it was merely descriptive of how the process, as it then was, operated, a statement of what would happen, not a promise that it would happen.

As Mr Sales points out, the claim in this case is that there was a legitimate expectation of a substantive benefit within the third of the three categories identified in R v North and East Devon Health Authority ex p Coughlan [2001] QB 213. Lord Woolf MR set out the key principles at paras [57]-[58]:

“Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, … the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy … the court has when necessary to determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised.”

He added at para [59] that “most cases of an enforceable expectation of a substantive benefit (the third category) are likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract.”

In R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607, [2002] 1 WLR 237, Schiemann LJ at para [19] identified the three questions that the court has to address:

“In all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or by promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do.”

He added at paras [20]-[21]:

“The answer to the first is a question of analysing the evidence – it poses no jurisprudential problems. Sometimes … the answer to this first question is dispositive of the case … if the public body has done nothing and said nothing which can legitimately have generated the expectation that is advanced to the court, the case ends there.”

I was also referred to the speech of Lord Hoffmann in Secretary of State for the Home Department v Zeqiri [2002] UKHL 3, [2002] Imm AR 296, at para [44]:

“It is well established that conduct by an officer of state equivalent to a breach of contract or breach of representation may be an abuse of power for which judicial review is the appropriate remedy: see Lord Templeman in R v Inland Revenue Commissioners, Ex p Preston [1985] AC 835, 866-867. This particular form of the more general concept of abuse of power has been characterised as the denial of a legitimate expectation. In considering the expectations which may legitimately arise from statements to taxpayers by the Inland Revenue, Bingham LJ said that they must be “clear, unambiguous and devoid of relevant qualification”: see R v Inland Revenue Commissioners, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569G. Mr Gill said that while it might be appropriate in the case of dealings between the Revenue and sophisticated tax advisers to insist upon a high degree of clarity in the alleged representation, this need not necessarily be required in other cases. Kosovar refugees cannot be expected to check the small print. In principle I agree that an alleged representation must be construed in the context in which it is made. The question is not whether it would have founded an estoppel in private law but the broader question of whether, as Simon Brown LJ said in R v Inland Revenue Commissioners, Ex p Unilever plc [1996] STC 681, 695B, a public authority acting contrary to the representation would be acting “with conspicuous unfairness” and in that sense abusing its power.”

I am content to accept that, in the present context, the claimants do not need to show the high degree of clarity contemplated by Bingham LJ. But even allowing for that, the simple fact in my judgment is that the Secretary of State never committed herself in the way in which Ms Mountfield would have me accept that she did. That is fatal to Ms Mountfield’s case. It is, to adopt Schiemann LJ’s phrase, dispositive of the case.

I should, however, deal briefly with the other two matters raised by Mr Sales.

Detrimental reliance, although potentially relevant in most cases is not essential. Having referred to what Peter Gibson LJ had earlier said in R v Secretary of State for Education and Employment ex p Begbie [2000] 1 WLR 1115 at p 1124, that “It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation”, Schiemann LJ in R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607, [2002] 1 WLR 237, at para [31] said that:

“the significance of reliance and of consequent detriment is factual, not legal. In Begbie’s case both aspects were in the event critical: there had been no true reliance on the misrepresentation of policy and therefore no detriment suffered specifically in consequence of it. In a strong case, no doubt, there will be both reliance and detriment; but it does not follow that reliance (that is, credence) without measurable detriment cannot render it unfair to thwart a legitimate expectation.”

He went on at para [55] to make this important point:

“The present case is one of reliance without concrete detriment. We use this phrase because there is moral detriment, which should not be dismissed lightly, in the prolonged disappointment which has ensued; and potential detriment in the deflection of the possibility, for a refugee family, of seeking at the start to settle somewhere in the United Kingdom where secure housing was less hard to come by. In our view these things matter in public law, even though they might not found an estoppel or actionable misrepresentation in private law, because they go to fairness and through fairness to possible abuse of power. To disregard the legitimate expectation because no concrete detriment can be shown would be to place the weakest in society at a particular disadvantage. It would mean that those who have a choice and the means to exercise it in reliance on some official practice or promise would gain a legal toehold inaccessible to those who, lacking any means of escape, are compelled simply to place their trust in what has been represented to them.”

I am far from persuaded that, if there were no other obstacles in the way of their claim, I would reject the claimants’ case on legitimate expectation on the sole ground that there was no detrimental reliance.

In relation to the other matters raised by Mr Sales by way of defence I would in any event have rejected the claimants’ case on each of those other grounds. As Ms Mountfield says, what constitutes an overriding public interest is a question for the court, and involves balancing the degree of unfairness involved against the strength of the competing public interest. Here, and very much for the reasons he gives, I would agree with Mr Sales that there was a pressing public interest justifying the introduction of the suspension and, moreover, without prior warning. And insofar as part of Ms Mountfield’s challenge is founded on the proposition that there were alternative safeguards which could, and therefore should, have been put in place in relation to transitional cases and which would have provided an effective and more proportionate solution to any public interest arguments that the Secretary of State was entitled to address, I again agree with Mr Sales. For reasons which I expand further below, the Secretary of State was, in my judgment, entitled to conclude that any reasonably feasible alternative safeguards that might have been put in place were simply not likely to be sufficiently effective to address the very real and pressing problems which called so imperatively for action on the part of the Secretary of State.

Accordingly this ground of challenge also fails.

Ms Mountfield submits that:

She accepts that it might have been rational and non-discriminatory either (a) to inform the relevant authorities that henceforth no further applications from couples claiming to be suitable persons to adopt from Cambodia should be considered or (b) to apply a suspension by means of the withholding or revocation of Certificates in respect of all prospective adoptions from Cambodia where there had been no transfer of parental responsibility as a matter of Cambodian law. But she says that the claimants have been subjected to arbitrary and unjustified discrimination in comparison with those who, fortuitously, had had certificates issued and received an initial matching report from the relevant Cambodian authority – even in cases where there had been no meeting between prospective adopter or child, where there had been no adoption in Cambodian law, and where no consideration had been given by the United Kingdom authorities to the entry clearance questions which arose.

Ms Mountfield submits that the matter comes within the ambit of Article 8. She accepts that the claimants have no right to adopt children, and that the right to respect for private and family life contained in Article 8 confers no such entitlement: see Frette v France (2002) 38 EHRR 438. She says, however, that family and private life ties can arise outside, and prior to, the recognition of any legally recognised family relationship, and that when rights within the scope of Article 8 arise, then (i) measures which interfere with them will need to be justified by reference to the qualifications in Article 8(2) and (ii) any differential application of them on grounds of any ‘status’ must be objectively justified, by reference both to common law fairness and Article 14.

She further submits that the claimants and their comparators, who are further along in the adoption process, are analogously situated, so as to call in the mind of a fair-minded person for justification (the test in R (S) v Chief Constable of South Yorkshire [2004] UKHL 39, [2004] 1 WLR 2196). The question, she says, is thus whether the differential treatment of the two comparators was objectively justified to meet a legitimate aim of social policy and was a proportionate means of doing so.

She accepts that public authorities are entitled to adopt certain ‘bright lines’ in determining the scope of policy changes, and therefore recognises that it may be justified to treat those who are already in the adoption ‘pipeline’ differently from those who have not yet entered the assessment and consideration process, so as to limit the number of cases for which rigorous entry clearance scrutiny needs to be provided if, as the Secretary of State contends, there would be unacceptable resource ramifications in providing a thorough system of field checks instead of suspending adoption from Cambodia generally. What, however, she says, is not rational and cannot be justified, is the drawing of an arbitrary distinction between groups of those ‘in the pipeline’ – that line being drawn between those cases where the Cambodian authorities have (by fortuity) tentatively matched a prospective adoptive child with a parent, and those who have not, whether, like the eleventh and twelfth claimants, because MoSALVY had not yet got around to it, or because of the Secretary of State’s decision not to issue a certificate.

The social policy need identified for imposing a suspension on Cambodian adoptions is the need to ensure that no trafficked child is inadvertently adopted and left in an unacceptable legal limbo. Ms Mountfield accepts that the social policy is self-evidently important, but asserts that it does not justify the discrimination between the two groups identified here because:

She points to A and others v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 WLR 87, as showing that distinctions between two comparator groups cannot, in themselves, justify differences of treatment between them if they are irrelevant to the difference of treatment in question. In the same way here, she says, the Secretary of State has offered no proper justification for why it was felt necessary to withhold or withdraw certificates from some, but not other, of the transitional cases. Although it is, of course, a legitimate aim of social policy to ensure that no trafficked child is unwittingly adopted by a British couple, the cut-off line adopted by the Secretary of State did not, she says, meet this objective. The Cogle Report suggested that MoSALVY’s procedures for ‘matching’ children were inadequate, but a person who retained his or her certificate because in receipt of a matching report could well, in fact, have been unwittingly matched with a trafficked child. She adds that if, as the Secretary of State argues, the entry clearance procedures were simply unable to ensure that a child without special needs put up for adoption was a genuine orphan, then there could be no justification for excluding applicants from the ban merely because the matter was in the hands of MoSALVY. (Indeed, as she points out, the eleventh and twelfth claimants’ case was also in the hands of MoSALVY, and had been since 14 April 2004). If, on the contrary, entry clearance procedures were capable of being properly applied in a small finite number of cases, then it is difficult, she says, to see why the small number of transitional cases could not also have been subjected to it.

Ms Mountfield accepts that it might have been fair, rational and proportionate for the Secretary of State to impose a cut-off at the latest point in the adoption process before a Cambodian adoption, as being the latest point at which a certificate could be withdrawn before competing child welfare issues came into play; but she submits that the cut-off point actually chosen cannot withstand scrutiny in meeting such an objective, not least because the issue of the matching report and the issue of a Cambodian adoption certificate are not the same thing.

For all these reasons, she says, the cut-off point adopted by the Secretary of State for determining whether or not to issue a certificate was arbitrary, did not meet a recognised social policy objective and was consequently disproportionate and unlawful.

Mr Sales’s fundamental submission in answer to all this is that the difference between prospective adopters who had gone beyond the point of suspension and those who had not is not a proscribed ground of discrimination under Article 14 based upon their personal status (see in R (S) v Chief Constable of South Yorkshire [2004] UKHL 39, [2004] 1 WLR 2196, at paras [48]-[49]). The differences between these groups relates simply to how far they had got through the adoption process as a matter of fact. This is, he says, and I agree, the complete answer to the claim. In any event, he says, and I agree, the rationale for the choice of point of suspension satisfies any test of the lawfulness of a difference in treatment, whatever its legal source, whether domestic law rationality or Convention proportionality.

I agree with Mr Sales. As he correctly points out, the claimants’ argument again proceeds on the mistaken basis that there is no significant difference before and after the point at which MoSALVY issues a matching report, the claimants arguing that differences turning on this point in the process are merely fortuitous and arbitrary. But as Mr Sales points out, this argument entirely ignores the significance of what happens in the adoption process between the issue of the Secretary of State’s certificate and the making of the entry clearance application. During that time, the entire adoption process passes beyond the control of the United Kingdom authorities. It is a stage in the process in respect of which there is much of the reported wrongdoing and abuse. The abuses during this period include opportunities for official corruption in addition to private wrongdoing. And before the United Kingdom authorities regain any control over steps in the process, the child’s status undergoes a critical change under Cambodian law because it becomes adopted in the eyes of Cambodian law.

These arguments, which I accept, suffice to defeat this part of the claimants’ case. But I should place on record the other points made by Mr Sales in answer to Ms Mountfield’s complaints.

First, he says, the ‘solution’ advocated by the claimants (namely enquiries made about any child identified in a matching report issued by MoSALVY) would not be effective to prevent wrongdoing in relation to the child. As he observes, the claimants’ argument proceeds from the premise that sufficiently exhaustive enquiries would be able to establish the true origins of a child and that the child truly could not be cared for in any other way. But this, as he says, ignores the reality of the Cambodian situation, of which the Secretary of State has experience and has obtained information. Most children offered by MoSALVY are described as “abandoned”. Many of them have not been, but in a country in which there is in practice no effective or reliable registration of births and only the most rudimentary infrastructure, it would for all practical purposes be impossible in most cases to locate the child’s birth family to attempt to ascertain the truth of the claimed “abandonment” (even assuming that Cambodian officials, who might be corrupt and interested to prevent their own wrongdoing coming to light, did not take active steps to obstruct and mislead any foreign officials - or those acting for them - trying to pursue inquiries in their country). Any enquiries would largely be attempting to prove a negative (ie that the child was not an orphan, as he or she was held out to be by the Cambodian orphanage and officials), and to do so within Cambodia. Even if one overcame these difficulties, and details of the birth parents were provided or they could somehow be traced, the manner in which children are taken from birth parents may mean that wrongdoing is undetected or undetectable. The United Kingdom’s experience, as we have seen, includes such cases.

Mr Sales adds that the claimants have adduced no substantial evidence themselves of the enquiries which they say that the Secretary of State could practically carry out after the issue of a matching report by MoSALVY. They have made reference to individuals or bodies who, they say, might be able to carry out enquiries, but, he says, they have adduced no evidence to refute the Secretary of State’s evidence that such enquiries are unlikely to be effective and that they would require the expenditure of disproportionate resources, as the Secretary of State’s financial estimates themselves suggest. Despite the claimants’ repeated suggestions of restricting the number of orphanages from which children are taken, they have suggested no fair or proper mechanism for translating “concerns” about orphanages into a list of ‘good’ and ‘bad’ orphanages, nor any method for examining orphanages in Cambodia in such a way as to make a fair or proper distinction between ‘good’ and ‘bad’ orphanages, nor how the Secretary of State could continue to monitor ‘good’ orphanages to ensure that they did not become deliberately or unwittingly tainted by wrongdoing. And, indeed, in the case of one specific individual – Ms Sok – the Secretary of State’s evidence is that she would not be prepared to make enquiries in the circumstances typical of cases which would be likely to arise in the claimants’ cases. The claimants have adduced no evidence to contradict this.

Responding to the claimants’ references to the enquiries carried out by other countries in relation to cases which were pending at the time that they imposed their suspensions, in particular by the United States of America, Mr Sales points out that the systems operated by those countries are different from the United Kingdom’s processes, the legal tests which they apply are not known in detail, nor the level of detail of the evidence which they require to satisfy themselves, nor the level of risk they are prepared to accept that they might be misinformed or actively deceived by persons on the ground in Cambodia. The nature and effectiveness of the enquiries which those other countries seek to make is not known, nor their cost. The claimants have simply assumed that because the enquiries made by the United States within the context of its systems, its policies and its political and historical background are considered sufficient, an adequate level of enquiry can be made within the context of the United Kingdom’s process. This, says, Mr Sales is, with respect, not a proper basis on which the court could impose a requirement on the government of the United Kingdom to withdraw its own chosen mechanism for addressing the problem, and instead to introduce a different system based upon a presumption that enquiries in Cambodia will be effective to reveal the truth about possible illegality and abuse occurring on the ground there. The Secretary of State, as he points out, has repeatedly explained why such other enquiries would not be effective for the United Kingdom’s purposes.

Finally, Mr Sales submits that the claimants’ suggestion of Embassy control over money is unrealistic. Given the nature and scale of the corruption and wrongdoing involved, the apparent necessity for wheels to be greased, and the ready mechanisms for turning apparently legitimate money into illegitimate private gain (for example, the “donations” expressly provided for in the Cambodian decree), it is wholly unrealistic to suppose that handing the purse strings to the Embassy would eliminate all risks of improper financial transactions.

Each of these arguments, as it seems to me, provides powerful support for the fundamental proposition, which at the end of the day is in itself the answer to a large part of the claimants’ case both in respect of this as in respect of other grounds of complaint: the Secretary of State was, in my judgment, entitled to conclude that no alternative safeguards that could sensibly and reasonably have been put in place would be effective to address satisfactorily the problems she was faced with. The Secretary of State’s belief, then and now, was that safeguards would not be effective and that, subject only to the ‘exceptional circumstances’ exception, nothing short of a blanket ban would meet what she believed to be the pressing needs of the situation. I agree, for all the reasons deployed by Mr Sales, that the Secretary of State was entitled to conclude, as she did, that there was a very pressing problem which could appropriately be addressed only in the manner she proposed. The Secretary of State’s decision, in my judgment, comfortably meets the test not merely of legality but also of rationality and proportionality.

For these reasons I also reject this ground of challenge.

Ms Mountfield next submits that the extra-statutory machinery which the Secretary of State has put in place to consider ‘exceptional circumstances’ which might justify overriding the general suspension of the grant of certificates in particular cases, is unfair in common law terms and breaches Article 6 of the Convention insofar as it applies to “civil rights”.

Ms Mountfield submits that the Strasbourg court has given a wide and expansive meaning to what constitutes a “civil right” and points to what she says was the recognition in Fretté v France (2002) 38 EHRR 438 that the interest of a would-be adopter in seeking to establish a family life was a sufficient “civil right” to engage the right contained in Article 6 to a fair hearing by an independent and impartial tribunal. Moreover, and in any event, she says that in this context the scope of Article 6 and the common-law right to a fair hearing are materially similar.

She summarises the reasons why the ad hoc ‘exceptional circumstances’ procedure cannot properly be called a fair determination of the claimants’ attempt to establish a family life, whether to satisfy the requirements of the common law or to fulfil the requirements of Article 6, as follows:

Ms Mountfield contrasts what she calls the lack of transparency and due process in the ‘exceptional circumstances’ procedure with the entry clearance appeals process. She suggests that it is particularly striking that in the ‘crib-sheet’ issued to help them DfES officials dealing with enquiries after the imposition of the temporary suspension on 22 June 2004 were specifically enjoined not to inform enquirers of the ‘exceptional circumstances’ mechanism unless “pressed”.

Mr Sales asserts that the procedure which has been adopted in relation to ‘exceptional circumstances’ applications is fair and appropriate. The decision to be made is whether the relevant claimants should be permitted to be excepted from a policy stance taken in the public interest. The claimants, he says, have been provided with the guidance relevant to such decisions. He points out that the “only if pressed” marking was for the use of press officers being briefed to handle media enquiries. It was not intended to obfuscate the position for prospective adopters. As he pointedly observes, the entire Q&A document was sent to prospective adopters, so any attempt at obfuscation would immediately have been rendered completely pointless by that step, voluntarily taken by the Secretary of State at the time. The claimants’ point, he says, is a bad one. I agree.

Mr Sales submits that, contrary to the claimants’ suggestion, there is no ‘case against them’ as individuals. The reasons for the policy have been made clear and the documentary basis of the decision to impose a suspension has so far as practicable been disclosed. To the extent that correspondence has clarified those reasons, so as to enable the claimants to make further representations, the Secretary of State has invited such further representations, and has been (and remains) prepared to consider them. This correspondence also sets out the Secretary of State’s views about alternative safeguards. Ms Mountfield seeks to meet this by complaining that Mr Sales is taking an over-literal approach. The Secretary of State, she says, had not told the claimants of the enquiries she had made so as to conclude that there was a risk that any unidentified child without special needs might be a trafficked child, nor why they did not consider that additional safeguards could not be applied in the limited number of transitional cases to overcome these difficulties.

Mr Sales submits that the decision to be made in each case is quintessentially of the type to be made administratively in the first instance. It is, he says, both intensely policy-laden and dependent on a difficult evaluative judgment, where the Secretary of State (with the benefit of advice from the FCO and information from other governments) is best placed to make the relevant assessment. While the facts of the individuals’ cases are important, they can be fully set out on paper as the individual claimants have set them out. There was therefore nothing inappropriate or unlawful in the conventional decision-making structure of an administrative decision subject to the supervisory jurisdiction of the High Court. There were no features of this decision-making process which took it outside the normal parameters of such decision-making.

He submits that, contrary to Ms Mountfield’s assertion, there is no common law right to a fair hearing which extends beyond a fair opportunity to make representations to the relevant administrative decision-maker. The basic domestic law principle of audi alteram partem which applies is not equivalent to Article 6 and does not require there to be a decision-maker independent of the relevant public authority: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295; Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5, [2003] 2 AC 430.

Mr Sales does not accept that Article 6 applies in relation to the administrative decision whether a person should be given permission to adopt a child and then bring the child into this country:

Alternatively, and even if, contrary to his primary submission, Article 6 does apply here, Mr Sales submits that it is clear that the operation of the ‘exceptional circumstances’ regime is compatible with the requirements of Article 6. This is for two reasons:

Finally, Mr Sales comments that it is unclear what conclusion should follow if the claimants’ argument about incompatibility with Article 6 were made out. The Secretary of State has to decide to issue a certificate or not. If there is incompatibility with Article 6 by reason of the Secretary of State making that decision, it is not, he says, cured by her appointing someone else to take the decision on her behalf or taking advice from someone else. Presumably, he suggests, the logic of the argument would be that the Secretary of State should decline to issue any certificates at all. Ms Mountfield responds with the assertion that the appropriate remedy would be a declaration that a suspension coupled with only this, defective, appeal mechanism is contrary to Article 6.

I propose to say nothing on this last point, which does not in the event arise for decision. Nor do I need to decide whether Article 6 applies in this situation, though I strongly incline to the view, for all the reasons given by Mr Sales, that it does not. Essentially for the reasons given by Mr Sales I have no hesitation in concluding that the ‘exceptional circumstances’ procedure as operated by the Secretary of State meets every common law requirement of fairness and is in any event compatible with the requirements of Article 6, assuming Article 6 applies at all.

This ground of challenge accordingly also fails.

There are two further challenges to the operation of the extra-statutory ‘exceptional circumstances’ machinery which are the subject of grounds 9 and 10. In essence they are that the way in which the Secretary of State operated the ‘exceptional circumstances’ procedure was irrational and unfair. The claimants say that they all had ‘exceptional circumstances’, in the sense that they had been assessed not only as being suitable adoptive parents, but as being suitable to adopt a Cambodian child in particular. (Ms Mountfield adds that the eleventh and twelfth claimants had particularly ‘exceptional circumstances’, in that they had been granted a certificate over three months before the suspension was invoked, and that there were distinguishing circumstances in the case of the fifth and thirteenth claimants in that it would be desirable for the fifteenth claimant to have a sibling of the same ethnic and cultural heritage.) But in each case, however, the Secretary of State concluded, according to Ms Mountfield, that there were no steps which could be taken to obviate the risk that any child adopted might be a trafficked child and, consequently, that it could not be in the interests of any child to be adopted by one of the claimants.

The first complaint, ground 9, is that, the Secretary of State wrongly fettered her discretion to consider properly and open-mindedly the existence of ‘exceptional circumstances’, because she concluded in each case that there would be a risk that any child or children who would be matched with the claimants might not have been freely given up for adoption, and therefore it could never be in the best interests of any child or children who might be matched with that couple to be adopted by them. She erroneously concluded that the only satisfactory safeguard against the unwitting adoption of a trafficked child would be the adoption of a disabled (or ‘special needs’) child, and accordingly fettered her discretion so that only the desire on the part of a potential adopter to adopt a child with special needs could constitute an ‘exceptional circumstance’ meriting a favourable decision.

Ms Mountfield’s case is that the DfES has decided, as a matter of policy, that there is a risk which cannot be obviated that any child adopted by the claimants might be a trafficked child, since none has expressed an interest in adopting a special needs child. Her case is founded factually on an understanding that the two cases which have been allowed by the Secretary of State to proceed under the ‘exceptional circumstances’ procedure both involved ‘special needs’ children. Put in a nutshell her complaint is that the Secretary of State has, in effect, irrationally used ‘disabled child’ as a cipher for ‘non-trafficked child’. So, in her conduct of the ‘exceptional circumstances’ procedure, the Secretary of State wrongly fettered her discretion to consider properly and open-mindedly the existence of special circumstances, because, in each and every case decided so far (other than those who are specifically seeking to adopt a special needs child), she concluded, as it was put in the decision letters, that, however special the circumstances relating to the potential adopters:

“Taking into account the circumstances in this case, we consider there would be a risk that any child or children who may be matched with [names of couple] may not have been freely given up for adoption by their birth family. We therefore do not consider that the best interests of any child or children who may be matched with [names of couple] in these circumstances would be served by intercountry adoption” (emphasis added by Ms Mountfield).

Ms Mountfield complains that, given such a finding, it was inevitable that nothing in any such case, however special, could make the case exceptional in a way which would result in a positive decision. The flaw in what she calls this fettered approach is that there is, she says, a leap of logic from the evidential propositions:

She submits that there was no evidence to support the proposition that any non-disabled child in a Cambodian orphanage is (or is likely to be) a trafficked child – this is indeed, she says, contradicted by the evidence considered by the team who prepared the Cogle Report, and is self-evidently not the case in a country with a large number of AIDS orphans. But, she submits, by concluding that there were no safeguards which could enable the DfES to check whether any individual non-disabled child was genuinely abandoned or orphaned, the Secretary of State wrongly tied herself to this presumption. This error of approach meant that she erroneously concluded that the only satisfactory safeguard against the unwitting adoption of a trafficked child would be the adoption of a disabled (or ‘special needs’) child, and accordingly, that only the desire on the part of a potential adopter to adopt a ‘special needs’ child could constitute a special circumstance meriting a favourable decision. The Secretary of State, it is said, therefore fettered her discretion and closed her mind to the possibility of alternative safeguards being applied in cases in which there were exceptional circumstances pertaining to the applicants so as to enable steps to be taken to allow a child who was genuinely an orphan in need to be matched with them.

Mr Sales disputes that the Secretary of State has fettered her discretion in relation to the special cases. He points out that, as the claimants accept, two exceptional cases applications have in fact been granted. He notes, without expressly commenting on (and given the confidentiality to which all applicants under the ‘exceptional circumstances’ procedure are entitled there is no reason why he should), the claimants’ assertion that both exceptional circumstances exemptions have involved ‘special needs’ children. But, he says, and I agree, this is not evidence that the Secretary of State has fettered her discretion or that she will only approve exceptional circumstances exemptions in the case of special needs children. There is, he says, no evidence of any such fettering approach. The Secretary of State looks at the question of the risk that the child has been trafficked. There is no evidence, says Mr Sales, that she has done anything other than what she has said she would do. I agree. What Ms Mountfield is doing is to extrapolate from an assumption as to what lay behind the decisions in the two ‘successful’ cases – an assumption which may or may not be correct as a matter of fact – and then to assume that the only explanation for the difference between the Secretary of State’s decisions in those two cases and her decisions in the claimants’ cases is some undisclosed and, as she would have it, unlawful policy. Even if the initial assumption is correct, there is, as Mr Sales correctly submits, no evidential or other basis for making the further assumption. The truth is that in this part of their case the claimants are simply leaping to conclusions.

I agree also with Mr Sales’s other point. As he observes, the claimants argue that they all have ‘exceptional circumstances’ in that they have all been approved as suitable adoptive parents of a Cambodian child. But exceptional circumstances applications, as he points out, were always likely to come only from individuals who are within the group in that position. The question, which is set out clearly in the guidance materials, is in essence whether the circumstances of each couple’s case was sufficiently exceptional to justify a departure from the policy applicable to the ordinary case of that type. There is, as he rightly says, no obligation on the Secretary of State to treat everyone in that class of case as an exceptional case.

This ground of challenge fails.

The second error of law in the ‘exceptional circumstances’ procedure, according to Ms Mountfield, flowed from the first. It is that, despite the fact that, in its internal discussion paper “Different options for imposing a temporary suspension”, the DfES had recognised that the introduction of additional safeguards to prevent trafficked children being adopted from Cambodia could work in the short-term (which, says Ms Mountfield, is all that would have been needed for these cases), and despite what she calls an open and carefully reasoned offer to settle by the claimants, the Secretary of State has refused to consider putting in place additional safeguards to protect against the unwitting adoption of trafficked children in these six remaining transitional cases. So, in turning down the claimant’s ‘exceptional circumstances’ applications, the Secretary of State acted on the false basis that there were no safeguards which could satisfactorily be adopted to ensure that the adoptions in those six cases were of non-trafficked children.

Ms Mountfield submits that the reasons given as to why such safeguards would be inadequate were irrational because:

In relation to all this Mr Sales relies upon the same arguments as those he has already deployed in answer to similar arguments put forward by Ms Mountfield in support of her other grounds of complaint. Those arguments having failed in respect of the other complaints for reasons which I have already explained there is no need for me to rehearse matters again.

My conclusion is the same, and essentially for the same reasons. Accordingly this challenge likewise fails.

This is a discrete ground of challenge which is advanced only by the fifth, thirteenth and fifteenth claimants.

The fifteenth claimant is a small girl, now aged almost three, who had already been adopted from Cambodia by a British couple, the fifth and thirteenth claimants, when the temporary suspension was announced. Her adoptive parents were then at what Ms Mountfield calls an advanced stage of their application to adopt a second Cambodian child. They assert that if the temporary suspension is applied in their case it will for all practical purposes have the effect of denying the fifteenth claimant a sibling of the same ethnic and cultural heritage as herself.

Ms Mountfield submits that the DoH, DfES and other public authorities have rightly and publicly recognised that it is extremely important for a child adopted on an intercountry basis to have the benefit of close links to his or her ethnic and cultural heritage. She points in this connection to the DoH advice in paragraph 15 of Local Authority Circular LAC 98(20) Adoption – Achieving the Right Balance:

“All families should assist children placed with them to understand and appreciate their background and culture and to this end enlist the help and support of others; this can include providing opportunities for children to meet others from similar backgrounds, to practice their religion – both in a formal place of worship and in the home. Maintaining continuity of the heritage of their birth family in their day-to-day life is important to most children; it is a means of retaining knowledge of their identity and feeling that although they have left their birth family they have not abandoned important cultural, religious or linguistic values of their community. This will be of particular significance as they reach adulthood.”

She observes correctly that these sentiments chime with the United Kingdom’s international obligation under Article 8 of the United Nations Convention on the Rights of the Child to “respect the right of the child to preserve his or her identity, including nationality, name and family relations.” Furthermore, if more problematically, she says that they match the obligation of the Secretary of State as a public authority – indeed her statutory duty under section 6 of the Human Rights Act 1998 – to respect the ‘private and family life’ of those within her jurisdiction. Moreover, she says, and I do not doubt, the fifth and thirteenth claimants take the task of assisting their daughter to understand and appreciate her background and to meet others from a similar background extremely seriously.

Ms Mountfield submits that in these circumstances, and in the absence of an overriding competing interest, the application of the temporary suspension, and the Secretary of State’s refusal to issue a certificate to the fifth and thirteenth claimants under Regulation 5 of the 2003 Regulations, infringes the fifteenth claimant’s private and family life, engages and breaches Article 8 of the Convention and is accordingly a breach of the Secretary of State’s statutory duty under section 6 of the 1998 Act to give positive respect to the development of the fifteenth claimant’s private and family life and identity. She asserts that the competing rights of other Cambodian children not to be adopted in a manner inconsistent with their own human rights or the United Kingdom’s other international obligations (and thus the competing requirement under Article 8(2) to protect the “rights and freedoms of others”) can be met in this particular case by means other than making it impossible for the fifth and thirteenth claimants to adopt a child of the same ethnic and cultural heritage as their daughter.

Ms Mountfield relies in this connection upon two slightly different strands in the Strasbourg jurisprudence. First, relying upon the well-known line of cases of which Niemietz v Germany (1992) 16 EHRR 97 is an example, she submits that the right to respect for private life includes the right to develop (or preserve) a sense of identity and personality, either alone or in conjunction with others. As the Court said in Niemietz at para [29], “Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.” This, she submits, is clearly apt to require a public authority to take positive steps to respect the developmental interests of a child adopted outside her own culture and heritage when considering the application of a policy preventing any further such adoptions save in ‘exceptional circumstances’.

Secondly, referring to Gaskin v United Kingdom (1990) 12 EHRR 36 and Rose v Secretary of State for Health and Human Fertilisation and Embryology Authority [2002] EWHC 1593 (Admin), [2002] 2 FLR 962, she submits that Article 8 imposes a positive obligation upon the Secretary of State to protect the “vital interest” of a person, brought up away from their birth parents and environment, in understanding their childhood and early development.

Ms Mountfield is careful to point out, as indeed she has to (see below), that she does not seek to establish, and, as she would have it, does not need to establish, that Article 8 gives either the fifth and thirteenth claimants or the fifteenth claimant a right to adopt another Cambodian child into their family. She formulates the claim, rather, as being that Article 8 is engaged by the decision to apply the temporary suspension to them, because the application of the suspension interferes with the fifteenth claimant’s private life (my emphasis) “in the sense of her right to develop an identity and personality in conjunction with others, and to have the greatest links possible with her genetic heritage.” Ms Mountfield accepts that the fifteenth claimant’s rights under Article 8 are qualified, and that they would have to give way under Article 8(2) if outweighed by the competing rights of other Cambodian children not to be adopted in a manner inconsistent with their own human rights, the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption or the Immigration Rules. But, she says, on the facts and because of what she asserts is the efficacy of the alternative safeguards that could be put in place, they are not.

As I understand her submissions, Ms Mountfield does not seek to make out any case under Article 8 on behalf of the fifth and thirteenth claimants, only a case on behalf of the fifteenth claimant. Nor, in the final analysis, did she seek to make out any case, even on the fifteenth claimant’s behalf, based on respect for her family life, only a case based on respect for her private life. Although I have no doubt that Ms Mountfield was wise to limit her case in this way I think it is nonetheless important, in order to put her other submissions into context, to explain why she really had no option but to adopt this self-denying ordinance.

It is well established in the Strasbourg jurisprudence that neither Article 8 (nor for that matter Article 12) guarantees the right to adopt as such: see X v Belgium and the Netherlands (1975) 7 DR 75, X and Y v United Kingdom (1977) 12 DR 32, X v Netherlands (1981) 24 DR 176, Dalila Di Lazzaro v Italy (1997) 90 DR 134 and Fretté v France (2002) 38 EHRR 438. As the Commission said in X and Y v United Kingdom (1977) 12 DR 32 at p 34, “whilst it is implicit in Article 12 that it guarantees a right to procreate children, it does not as such guarantee a right to adopt or otherwise integrate into a family a child which is not the natural child of the couple concerned.” In Dalila Di Lazzaro v Italy (1997) 90 DR 134 at p 139 the Commission said that “the right to adopt is not, as such, included among the rights guaranteed by the Convention and … Article 8 does not oblige States to grant to a person the status of adoptive parent or adopted child.” This was echoed by the Court in Fretté v France (2002) 38 EHRR 438 at para [32]: “the Convention does not guarantee the right to adopt as such.” Moreover, as the Court went on to say, “the right to respect for family life presupposes the existence of a family and does not safeguard the mere desire to found a family.” None of this, I should add, is in any way affected by Pawandeep Singh v Entry Clearance Officer New Delhi [2004] ECA Civ 1075, [2005] 2 WLR 325.

In Pini and others v Romania (2004) 40 EHRR 312 at para [143] the Strasbourg court said: (Footnote: ¹)

“By guaranteeing the right to respect for family life, Article 8 presupposes the existence of a family (Marckx v Belgium (1979-80) 2 EHRR 330, para [31] and Johnson v United Kingdom (1997 27 EHRR 296, para [29]), although this condition would not appear to be fulfilled in the present case in the absence of cohabitation or any sufficiently close de facto ties between the applicants and their respective adoptive daughters either before or after the adoption orders were made. However, in the opinion of the Court, this does not mean that all intended family life falls entirely outside the ambit of Article 8.”

Accordingly I recognise, as Dyson LJ put it in Pawandeep Singh v Entry Clearance Officer New Delhi [2004] ECA Civ 1075, [2005] 2 WLR 325, at para [38], that “the potential for development of family life is relevant in determining whether family life already exists, and … this is not confined to cases involving children and their natural parents”. But as he went on to observe,

“however … unless some degree of family life is already established, the claim to family life will fail and will not be saved by the fact that at some time in the future it could flower into a full-blown family life, or that the applicants have a genuine wish to bring this about.”

Both in Pini and others v Romania (2004) 40 EHRR 312 and in Pawandeep Singh v Entry Clearance Officer New Delhi [2004] ECA Civ 1075, [2005] 2 WLR 325, family life was held to exist within the meaning of Article 8 in relation to children who had already been the subject of a completed (albeit in the latter case unrecognised) intercountry adoption, notwithstanding that they were still living in their country of origin, had not been able to enter their adoptive parents’ country and accordingly had never cohabited with their adoptive parents. But those cases were very different indeed from the present case. There the Article 8 claims arose in relation to identified children who had, moreover, been adopted under the relevant foreign law. Here, on the other hand, the claim arises in respect of an as yet unidentified Cambodian child who has not been adopted. This distinction, as it seems to me, is fundamental. As the Court put it in Pini and others v Romania (2004) 40 EHRR 312 at para [140]:

“although the right to adopt does not appear as such amongst the rights guaranteed by the Convention, relationships between an adopter and a person who is adopted are in principle of the same kind as the family relationships protected by Article 8 of the Convention” (emphasis added).

If, as the Court acknowledged in Fretté v France (2002) 38 EHRR 438, “the right to respect for family life … does not safeguard the mere desire to found a family”, then equally, as it seems to me, it does not safeguard a parent’s desire to extend the family by having another child or a child’s desire to acquire a sibling.

Any assertion in the present case that the fifteenth claimant’s family life is engaged founders for the reason given by Lord Walker of Gestingthorpe in In re D (A Child) [2005] UKHL 33 at para [44]: it “really assumes that which has to be established.”

Ms Mountfield, as I have said, relies on private rather than family life. But with all respect to the ingenuity of her argument it is, in my judgment, equally flawed.

I recognise the amplitude of the rights protected by Article 8, as exemplified not merely by the cases Ms Mountfield relies on but also by such cases as Botta v Italy (1998) 26 EHRR 241, Bensaid v United Kingdom (2001) 33 EHRR 205 and Pretty v United Kingdom (2002) 35 EHRR 1 which show just how wide is the potential reach of the Article 8 concept of private life. And I also readily recognise, as the same cases show, that Article 8 can in certain circumstances impose positive obligations on the state to take measures designed to ensure that these rights are effectively protected. But none of these cases comes even remotely within hailing distance of the present case. Ms Mountfield is quite unable to point me to any case, and I am not aware of any case, either at Strasbourg or before our domestic courts, touching, however tangentially, on circumstances remotely similar to those in which the fifteenth claimant finds herself, in which such a claim has even been recognised, let alone in which such a claim has succeeded. On the contrary, the present case, in my judgment, is really no more than an impermissible attempt to present as a right protected as part of the fifteenth claimant’s private life what quite clearly is not protected as part of her family life.

Try as she might, at the end of the day Ms Mountfield had no effective answer to the simple submission put forward in answer by Mr Sales. As he pointed out, there can be only two outcomes of the adoption process: the family either adopts another Cambodian child or it does not. If, as Ms Mountfield accepts, Article 8 confers no right on the adoptive parents to adopt another Cambodian child, and no right on the fifteenth claimant to have another Cambodian child adopted into her family, then Article 8 does not confer any meaningful lesser rights on either the fifth and thirteenth claimants or the fifteenth claimant. As Mr Sales correctly observes, the logical consequence of all the fifteenth claimant’s arguments under Article 8 is that the United Kingdom must allow the adoption to proceed – yet this is inconsistent with the plain law, acknowledged by Ms Mountfield, that the fifteenth claimant has no such right.

The rights guaranteed by Article 8 may be extensive, but they are not limitless. In this context it is not unimportant to remember, as Lord Hoffmann said in Matthews v Ministry of Defence [2003] UKHL 4, [2003] 1 AC 1163, at para [26], that the human rights protected by the Convention:

“do not include the right to a fair distribution of resources or fair treatment in economic terms – in other words, distributive justice. Of course distributive justice is a good thing. But it is not a fundamental human right.”

Even more pointed and in point are certain observations in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368. As Lord Bingham of Cornhill put it at para [4], “The Convention is directed to the protection of fundamental human rights, not the conferment of individual advantages or benefits.” Lord Walker of Gestingthorpe made the same point at para [34]: “There is no general human right to good physical and mental health any more than there is a human right to expect (rather than to pursue) happiness.” As Scott Baker J said in Rose v Secretary of State for Health and Human Fertilisation and Embryology Authority [2002] EWHC 1593 (Admin), [2002] 2 FLR 962, at para [37]: “the State is not required to take every positive step that might possibly promote the emotional well-being of some of its citizens.”

Moreover, as Mr Sales pointed out, notwithstanding the wide statements of principle articulated by the Strasbourg court in Botta v Italy (1998) 26 EHRR 241 and again in Sentges v The Netherlands (unreported – 8 July 2003), the applicants in both cases failed to make good their claims under Article 8, despite the evident sympathy of the court for the situations in which they found themselves.

Accordingly the claim under Article 8 fails at the first hurdle. Article 8, in my judgment, is not engaged. Nor in any event have the fifteenth claimant’s rights under Article 8 been interfered with.

Be that as it may there would in any event, in my judgment, be unanswerable force in the further point made by Mr Sales. Even if any of the fifteenth claimant’s rights under Article 8 have been interfered with by the Secretary of State’s actions (or inaction), any such interference is amply justified under Article 8(2) by the public interest reasons for which those actions have been taken. In particular, as Mr Sales correctly points out, the nature and importance of the interests at stake, and the abuses of the Cambodian adoption system which have become evident, amply justify the Secretary of State’s view that action had to be taken and demonstrate that the action actually taken was both appropriate and proportionate. Put shortly, and to repeat points which I have already made in other contexts, a suspension at the point chosen was the only practicable means to achieve the legitimate – indeed the very pressing – objectives that the Secretary of State was very properly seeking to promote; and the alternative of making enquiries in every individual case is impractical in the light of the resources which can properly be devoted to such enquiries and the absence of feasible and effective means to conduct them.

In this connection it is important to bear in mind what the Court said in Pini and others v Romania (2004) 40 EHRR 312 at paras [153]-[156]:

“[153] … the interests in question here are the competing interests of the applicants and the adopted children …

[154] The adoptive parents’ interest lies in their desire to create a new family relationship by creating a relationship with their adopted daughters…

[155] However legitimate that might be, in the opinion of the Court the applicants’ desire could not enjoy absolute protection under Article 8 in as much as it comes into conflict with the children’s refusal to be adopted by a foreign family. The Court has always ruled that particular importance has to be given to the best interests of the child when deciding whether national authorities have taken all measures that could reasonably be demanded of them to ensure that a child is reunited with its parents. It has found in this respect, in particular, that such interests may, depending on their nature and seriousness, override those of the parent.

[156] The Court considers that in the case of a relationship based on adoption it is even more important to give the child’s interests precedence over those of its parents because, as it has already stated in its case law, adoption means “giving a family to a child and not the child to a family”.”

That last observation is a reference to what the Court had earlier said in Fretté v France (2002) 38 EHRR 438 at para [42]. In my judgment the Secretary of State was fully entitled to attach particular importance to the interests of the many Cambodian children whose welfare she is rightly anxious to protect and to give the pressing claims of those children precedence over the claims, however pressing, of the fifth, thirteenth and fifteenth claimants.

For all these reasons this ground of challenge also fails.

Accordingly I dismiss both the application for specific disclosure and the application for judicial review.